Wigmore JH 1928 Panorama World's Legal Systems 1

A PANORAMA

of the

World’s Legal Systems

by

JOHN HENRY WIGMORE

Professor of Low in Northwestern University

IN THREE VOLUMES
WITH FIVE HUNDRED fULUST RATIO NS

Volume I

I

S. E3. £="-
KBtilphahcsi

8

43(>o$

SAINT PAUL

WEST PUBLISHING COMPANY

To

Copyright 1928
by

John H. Wigmore

THE BRETHREN OF THE BAR

OF THE

UNITED STATES OF AMERICA

IN THE HOPE THAT THROUGH THEIR LEADERSHIP
THIS NATION MAY ATTAIN TO
A LARGER KNOWLEDGE AND A DEEPER INTEREST
IN THE

LEGAL INSTITUTIONS OF OTHER PEOPLES
AND

THUS MAY BE INSPIRED
TO A MORE READY COOPERATION
IN ALL THAT MAKES FOR
THE WORLD’S LEGAL PROGRESS

Author’s Note

Purpose . The purpose of these chapters is to interest the
professional public (lawyers, and students of law and political
science) in the world’s legal systems outside our own. This is per-
haps the first attempt to apply in the field of Comparative Law the
method now so widely used in expounding other branches of knowl-
edge — the pictorial method. Who would have thought that the dry
history of Law could be enlivened with pictures? That it can be
done, the author has proved, to his own satisfaction at least, by a
series of lectures with lantern-pictures, covering the same field, and
delivered during the last four years to successive classes of law
students, as well as to several thousand lawyers in cities from Mas-
sachusetts to California.

This book seeks to give permanent form to the method, by aid
of the printed page.

Scope . The sixteen principal legal systems, past and present,
lorm the subject — Egyptian, Mesopotamian, Hebrew, Chinese,
Hindu, Greek, Roman, Japanese, Mohammedan, Keltic, Slavic,
( iermanic, Maritime, Ecclesiastical, Romanesque, Anglican.

For each series are shown between twenty and fifty pictures,
connected by a concise narrative exposition. In each series, the
pictures present the edifices in which Law and Justice were dis-
pensed (whether temples, palaces, tents, courthouses, or city-
gales); the principal men of law (whether kings, priests, legislators,
judges, jurists, or advocates); and the chief types of legal records
(whether codes, statutes, deeds, contracts, treatises, or judicial
divisions). By these aids, the narrative attempts to reconstruct
some realistic impressions of the legal life of these peoples. Sub-
sequent study of the book-learning about the details of these sys-
lems can thus be made more attractive and intelligible.

Pictures . The pictures have been gathered by the author,
during many years past, by search in libraries and by travel in

l*/|

numerous countries. Some of the photographs were taken specially
for this purpose. For example, in the Roman and the Greek series,
photographs were taken of the earliest records preserved in the
museums of Naples and Rome; in the Canon law series, of manu-
scripts in the Vatican library; in the Babylonian series, of boundary-
records in the British Museum; in the Japanese series, of early deeds
in the Imperial Museum at Nara; in the Slavic series, of early
Bohemian codes at Prag; in the Romanesque series, of the ancient
courtroom of Normandy at Rouen; in the Maritime scries, of the
Consulado del Mar at Paris; in the Mohammedan series, of the
oldest extant law- treatise at Milan and of the longest deed in the
world at Cairo. From various galleries of Art have been used
photographs of famous paintings, such as Titian's painting of the
Council of Trent, Ary Scheffer’s painting of Charlemagne enacting
his First Statute, and Cabanel's painting of St. Louis dispensing
Justice, at Paris; of Benjamin Constant’s painting of Justinian
Compiling his Code, in the Metropolitan Art Museum of New
York; of Serra’s fresco of Irnerius, at Bologna.

The facsimiles of manuscripts and inscriptions, from the
archaeological and historical records of various countries, include
the oldest court record, the oldest will, the oldest treaty, the oldest
codes, extant in the world; Gaius’ Institutes and Justinian’s Digest;
the Lex Salica and the Sachsenspiegel ; Domesday Book and Brac-
ton’s De Legibus Angliae; Gratian's Decretum, one of Innocent
Ill's Bulls; the earliest Islamic law- treatise, and the oldest Roman
civil judgment; typical deeds and contracts in the Egyptian, He-
brew, Germanic, Roman, Hindu, Islamic, and other systems.

The printed facsimiles include the first editions of the Code
Napoleon, of Coke's Institutes, etc., etc.

The views of buildings and places are taken, for the ancient
systems, exclusively from archaeologists' or artists’ restorations
(not ruins), and are colored in pursuance to authentic directions.
For the modern systems, they include the famous edifices of Justice
in Rome, Paris, London, Rouen, Padua, Moscow, Budapest, Cal-
cutta, Peking, Buenos Aires, Cairo, Morocco, Bokhara, Constanti-
nople, and elsewhere.

The portraits (ideal or veritable) include the most famous
judges, jurists, advocates, and legislators in all the systems, so far as
obtainable.

Eight libraries in Chicago have been searched personally by the
author; acknowledgments are here due to the Librarians of the
University Library of Northwestern University, the Garrett Bibli-
cal Institute Library, the Evanston Public Library, the Chicago
Public Library, the Newberry Library, the John Crerar Library,
the Chicago Art Institute Library, and the University Club of Chi-
cago Library. Most of the books of law used and of the portraits
and facsimiles selected have been found in the Elbert H. Gary Law
Library of Northwestern University. Many libraries and museums
elsewhere have been consulted by correspondence, — in particular,
the Frick Art Reference Library in New York, Sir Robert Witt’s
Art Reference Library in London, the Libraries of Congress, of the
Fiske Collection of Cornell University, and of the Haskell Oriental
Institute of the University of Chicago. Books of travel, history,
and memoirs have been drawn upon. To the scores of publishers,
authors, editors, librarians, professors, and personal friends who
have procured or donated illustrations or freely consented to their
use, a grateful acknowledgment is now made; their names in each
case are listed at the end of each chapter.

The photographs not obtained from abroad were made under
the author’s direction, by Mr. C. T. E. Schultze of Chicago. The
photo-engraving was done by the Buckbee-Mears Company of
St. Paul.

Text . Specialists in these varied branches may find reason, here
and there, to question a statement in the text. As to this, the range
covered is extensive, and the whole field abounds in details yet un-
discovered or unsettled by historical scholarship; so that the author
cannot hope to have avoided matters of controversy. But he has
sought at every point to depend for the facts upon respectable
authority; and chapter and verse can be given in every instance.
Wherever available, the original record, or a facsimile, has been
used and shown. For the broad outlines, and the generalizations,
the author accepts responsibility. The periods of time being large,

\XII\

1 XII 1]

exact dates would often make a false impression; hence, round
numbers only have generally been given.

Moreover, the object has been, not to establish specific facts for
the scientific world, but to present in perspective for the legal
profession (and the general public) a true impressionistic whole.
The plan was as attractive (and as venturesome) as that of Mr.
H. G. Wells’ “Outline of History”; and the difficulties and limi-
tations have been similar. Naturally, the method of drawing an
impressionistic picture, in broad outlines, compels often the omis-
sion of those exceptions and qualifications which would otherwise
have to be stated. Each method — "the impressionistic and the
microscopic, that of Monet and that of Meissonier — has its own
legitimate place as a vehicle of Truth.

References . No footnotes are used. But at the end of each
chapter are cited (1) the sources of the illustrations used, with
acknowledgments to publishers and authors; (2) the sources of the
documents quoted; (3) some general works of reference.

This list of General References is intended to aid those readers
who may be stimulated to study further any one of the legal sys-
tems here described. Only works in the English language are
listed, except where such works are scanty in scope or the materials
in some other language are indispensable.

For a general background to the whole comparative history of
law, the author ventures to recommend the following reading-list
of works in the English Language :

Sir Henry Sumner Maine , “Ancient Law” and “Early Institu-
tions” (latest editions);

John Maxcy Zane } “The Story of Law” (New York, Ives Wash-
burn, 1927);

Albert Kocourek and John H. Wigmore, editors, Evolution of
Law Series (Boston : Little, Brown & Co.) ; a compilation from the
world’s legal literature;

Vol. I: “Sources of Ancient and Primitive Law”;

Vol. II: “Primitive and Ancient Legal Institutions”;

Vol. Ill: “Formative Influences of Legal Development”.

Continental Legal History Series (Boston : Little, Brown & Co.) ,
Vol. I, “General Survey”, and Vol. XI, “Progress of Continental
Law in the Nineteenth Century”.

Many years ago, while living in Japan, the author came under
the spell of what is called Comparative Law. The world-wide
stimulus of Maine’s “Ancient Law” was then unique; there was
little knowledge, few workers, and scanty materials. Times have
moved on. The field of Comparative Law, as known to scholars,
has been vastly enlarged; and every country now has its specialist
contributors. The trend of the times urges to greater and more
intelligent interest by the peoples of the world in each other; and
Maine’s inspiring call to that knowledge still echoes to our pro-
fession. But the legal profession at large has not hitherto been
vouchsafed an opportunity to share this knowledge, summarized
in feasible form and with living interest. The present work seeks to
offer that opportunity.

Northwestern University School of Law
October, 1928

[XIV]

[XV]

V

A Panorama

of the World’s Legal Systems

CONTENTS

Volume One
PROLOGUE

Purpose of the Panorama — The legal systems compared,
as to Age and Duration

CHAPTER L

The Egyptian Legal System

L Egypt and the Nile Valley — The earliest legal system*

2. The king the fountain of justice — The chief judge and
prime minister— The courts

3* Maat, the goddess of justice — Egyptian philosophy of
justice — Harmhab’s search for the perfect judges —
Thutmose’s instructions to his chief judge

4. The king as legislator — Menes, the first law-giver —
Harmhab, the legislator-king — The lost codes. * . *

5. Transactional documents — Pictographs — Ramses IPs

treaty with the Hittites — Hieratic script — Uah’s will —
Demotic script — Bond for release of a prisoner—
Marriage-contract — Greek script — Roman decision in
Greek

6. Judicial procedure — Oldest court record — Lawsuit of

Mes v. Khay— Rules for procedure — Trial for treason —
Trial for tomb-robbing

7. Papyrus of Hunefer — J udgment of the Soul

[XVII]

8. Egyptian system submerged under Greek and Korun n Page

and Mohammedan rule 49

CHAPTER II.

The Mesopotamian Legal System

1. Babylonia and Assyria — Their mixed stocks 59

2. Development of literature and commerce — 'Cuneiform

records of commerce and law 0(J

3. Deed of storehouse — Warranty deed — Stone landmark

— Marriage-settlement 03

4. Commercial instruments— Promissory note payable to

bearer — Banking records — Partnership documents , * . 09

5. Judicial system — Judgment in a boundary-suit — Action

for the sale-price of land — Lawsuit over a will— Action
by a widow claiming land — Petition of an accused under
arrest 73

6. Sumerian code — 'Parable of the prodigal son — Ham-

murabi code — Codes of Hammurabi, Assur, and Deu-
teronomy, compared 84

7. Daniel and the handwriting on the wall — Fall of Baby-
lon 92

CHAPTER III .

The Hebrew Legal System
Shifting home of early Hebrews — Five stages of the
legal system 103

1. Mosaic Period — The Ten Commandments — Hebrew
and Greek texts — Deuteronomy — Moses delegates
justice to professional judges — Solomon — Absalom
doing justice at the Gate — 'Solomon's judgment be-

tween the two mothers 105

2, Classic Period — The Sanhedrin — -The rabbi — The

Temple — 'Loss of Hebrew political independence ... 112

3. T almudic Period — The Talmud — Development of law by
precedents — Debates of the rabbi — Jesus debating in

the Temple 117

4. Medieval Period — -Maimonides — Exchequer of the Jews Page

— Commercial instruments — Marriage-contracts ... 123

5. Modern Period — A Hebrew Code — 'Reading the Torah. 130

CHAPTER IV.

The Chinese Legal System
(I) Political Principles

1. The third oldest system, and the only surviving old one
—Conservatism and filial piety — Confucius’ political

philosophy 141

2. Philosophy of Justice 143

3. A government of men, not laws — Absolute governors,

responsible for producing popular contentment. . . . 145

4. Conciliation before litigation 148

5. Legislation based on popular custom and sentiment. . 150

6. Laws penal in form 152

7. Practical justice; the testimony of Perera the Portuguese 153

(II) The Old Legal System

8. Early codes — -The “Burning of the Books” — Tsing Code
of A. D, 1650 — Lu and Li — Texts on Adoption and on

Mortgage 158

9. Conveyancing— Mortgage deed of 1870 — Registration

of land -titles 169

10. Court procedure 177

11- Appellate justice— Precedents — Supreme Court opinions
of A. D. 1827 and 1830 on adoption and marriage —

Record of a trial for manslaughter in A. D. 1808 . . . 178

12. Law-treatises — Imperial edicts — Judicial rescript —

Legislative decree— Edict on stone 187

(III) The New Legal System

13. Revolution of 1912 — Constitution of 1923 — New codes

— New Supreme Court decisions 193

14. Durability of China's institutions 200

[XVIII 1

[XIX]

CHAPTER V.

The Hindu Legal System

(I) Races and Languages in India

1. Heterogeneous peoples and law languages — Six surros-

sive alien dominations — Mohammedan element Na- Page
tive Hindu law 211

2. Sanskrit and Pall — Records on palm-leaf and stone -
Deeds of B. C, 23 and A, D. 1000 — Jagannatha's rules

for conveyancing 215

(II) The Buddhist Branch

3. Buddhist law — Asoka's edicts

4. Buddhist law in Indo-China, the East Indies, and the

Philippines *

5. Burmese law — Dhammathat — Court procedure. . . .

6. Siamese law — A trial for treason in Siam

7. Eradication of Buddhism in India

(III) The Brahman Branch

8. Brahman Laws of Manu — Caste — Village justice —

Schools of Brahman law — Jagannatha on the law of gifts 243

9. Courts of the rajahs — The Durbar — Brahman legal ad-
visers — Rules of pleading — Procedure by taboo . . . 249

10, Administration of justice — Bribery and perjury. . . . 257

11, Brahman law submerged by the Mohammedan con-
quests — Revived under British rule 266

12 , Sanskrit discovered and the law-books translated —

Custom vs. scholastic books — Hindu law in British
courts 270

221

227

22S

236

2'I2

[XX]

Page

Prologue to Chapter VI 283

CHAPTER VL
The Greek Legal System

L Greece in the Homeric Period — The Lawsuit on Achilles’

Shield — Themis — Greek justice not theocratic, but
democratic 287

2. Classical period — Tribunals of jurors as judges — Juries

of 500 persons — Socrates' trial 289

3, Aristotle's description of the drawing of the jury— Con-
duct of the trial — Juries the all-powerful judges of law

and of fact — Mock-trial of Lucian 293

4, Civil litigation— Record of the lawsuit of Pausimachos'

Heirs v. Calymna City . .' 314

5. Places of trial — Phidias' trial in the market-place —

Trial of Orestes on the Areopagus 318

6. Jury-trial and forensic oratory— Lysias, the speech-
writer — Hyperides and the trial of Phryne — Demosthe-
nes' speech in the case of Darius v. Dionysodorus —

Demosthenes' speech on the Crown 324

7. Legislation — Minos the first law-giver — City -laws of

Gortyna— Solon the legislator — Legislative methods. . 335

8. Conveyancing— Deed, Lease, Loan — Drainage con-
tract 346

9. Greek Art and Literature in contrast to Greek Legal

Science 358

CHAPTER VIL

j The Roman Legal System

\ L Roman instinct for law and order — Territorial ex-

i pansion 373

i

[XXI]

(I) Period of the Republic

2. The Twelve Tables — Public inscription of laws Ci(y

ordinance for highway regulation, B. C. 45- — Colonial Pago

city ordinance for court-procedure 371

3. Earliest civil judgment, in a boundary suit 381

4. Transactional instruments — Contract to build a gate-

way, B. C. 105 — Deed from Dacia — Testament from
Egypt 389

5. Lay tribunals — The advocate — Tacitus on the status of

advocates — Horten si us — Cicero — Essay on argumenta-
tion 3! )(>

6. The court-houses — Jury trials 400

(II) Period of the Early Empire

7. The praetor — Trial methods — Trial of Apollonius at

Rome — The sophists' trial at Athens — Jesus' trial at
Jerusalem 408

8. Development of a science of law 410

9. Julian, the judge — The Perpetual Edict — Records of

decisions 420

10. Ulpian and Papinian, the Counsellors— Opinion ren-
dered by a counsellor — Case-law 426

1L Quintilian, the teacher — Treatise on the Education of

the Advocate 434

12. Gaius, the jurist — The Institutes — Dawn of legal science 437

(IIP) Period of the Later Empire

13. Justinian at Byzantium — Compilation of the Digest. . 443

14. Italy occupied by the Germanic tribes — Disappearance

of Roman Law in the West 446

[XXII]

Volume Two

Page

Prologue to Chapter VIII 457

CHAPTER VHP
The Japanese Legal System
(I) First Period , A. D, 500-1200

1. Immigrant races 461

2. Laws of Shotoku Taishi — Confucian morality the basis 463

3. Later codes — Early conveyancing — Rule of the palace
intellectuals— The Fujiwara family — Transfer of power

to the military barons 465

(IT) Second Period , A. 1200-1600

4. Yoritomo, founder of the feudal Regency 475

5. Code of Jo-yei — The Supreme Court 476

6. Civil War again 479

(IIP) Third Period , A. D. 1600-1850
7. The Tokugawa dynasty, and Iyeyasu the founder —

Three centuries of peace — Commercial development , . 480

8. Legal development under the Supreme Court 481

9. Laws not published — Handbooks of instruction for
magistrates— Trial methods — Oka the famous judge —

Local village codes 483

10. Conciliation before litigation — Parties' settlement

record of A. D, 1853 . . 489

11. Development of law by judicial precedents— The three
jurisdictions — The Supreme Court — Rules of procedure
— Revision by reference from the trial judge — Record
of a partnership lawsuit — Use of precedents — Supreme

V Court opinion on survival of liability 503

| (IV) Fourth Period , A . D , 185Ch~

j 12. Political changes — New Codes and Old Customs . . . 520

[XXIII]

CHAPTER IX .

The Mohammedan Legal System.

(I) Origin and Spread of Islam

Arabia awakened by Mohammed — Islam an all-in-
clusive system of life — Spread of Islam — Leadership in
science and arts — Cordoba the finest capital in Europe Page
— Decline of Islam — Stages of its legal history. . . . 535

(II) Civil Justice

1. Law a part of religion — Sources 5 hi

2. The Koran 515

3. Sayings and Acts of Mohammed — Sayings on the law of

succession 5 IS

4. The commentators — Zaid Ibn Ali — Sidi Khalil’s Code
on sales, bankruptcy, partnership — Opinions on legal

cases — Theoretic treatises 552

5. Conveyancing — Deed of trust — Inheritance — The

longest deed in the world 5(‘>5

6. Development of a professional class — Shaikh -ul- Islam 573

7. Mufti and Kadi — Judge and Counsellor— Divorce-suit

in modern Tunis 57N

8. Legal Education — Harun-ar-Rashid — Colleges .... 587

9. Example of a lawsuit-record in A. D. 1916 591

(III) Criminal Justice

10. The Divan, or personal justice of the ruler 614

11. Justice in Arabia— Judge in Libya — Courts in Nigeria

— The Sultan of Ruanda — Justice in Annam, Persia,
Afghanistan 620

L2. Modern Turkey and Persia— Occidentalization of the

law — Conservation of racial ideas 636

(IV) Retrospect

[XXIV]

Prologue to Chapters X, XI , XII .

The three illiterate European races, Keltic, Slavic,
Germanic — Effects of the gradual contact with the Page
literate Mediterranean races 653

CHAPTER X.

The Keltic Legal System
(I) First Period: Keltic Independence

1. Conquest of Gaul by Julius Caesar 657

2. Two types of Kelts — Political instability — Survival of

legal system in Wales and Ireland 659

3. Druids as judges and repositories of the unwritten law —

Carnac monuments — Druid justice 661

4. Extirpation of the Druids 668

(II) Second Period: The Surviving Keltic Systems

5. Stages of Irish legal history 669

6. Primitive conditions 671

7. King Cormac the legislator — The Assembly at Tara . . 673

8. Judgments of the Brehons — The“Wrong Judgments” of

Caratnia 676

9. St. Pathric brings letters — The customs recorded. . . 686

10. Irish leadership in literature and learning 689

11. The Irish law-books — The Senchus Mor — Law of dis-
tress, and of damage by pigs — Script of the law-books 690

12. The Welsh law-books — Code of Howel the Good — The

triads 699

13. Contrast between Keltic and English legal ideas — James

Lynch’s Case . 704

[XXV]

( III) Third Period: Dissolution of the Keltic System

14. Llewellyn the Great — Magna Carta saves Welsh law Page

Henry VIII extirpates it 707

15. Irish law abolished by James I — Causes for its over-
throw — The Curse of Tara 7 1 3

16. Daniel O’Connell and the Repeal — The Irish Free Stale

and the Irish Chief Court of 1924 7 IS

CHAPTER XI.

The Slavic Legal System

1. Four main branches of the Slavic race 7115

(I) Bohemia

2 . The Checks — Judgment of Libussa, the maiden ruler . 7 MO

3. Germanic mercantile towns — Briinn Book of Rights

Court record of Briinn . . . . . 73S

4. The Jus Regale Montanorum — Charles IV and his

imported Romanesque jurists — Majestas Carolina. . 741

5. Budovec, the patriot chief justice — The Defenestration

— Suppression of Bohemian law 741

(II) Poland

6. Kasimir the Great’s Charter of Wislica — Romanesque
law — Court record of Krakow — Germanic mercantile

law 740

7. Constitution of Nieszawa — Poland an oligarchy — The

Liberum Veto — Konarski the jurist 750

8. Partition of Poland — Code Napoleon and Russian law 753

(III) Yugoslavia

9. Greek Christianity — Shepherds and mountaineers. . . 754

10. Romanesque law from Byzantium and Venice — Law-

code of Spalato — Glagolite script and the law-code of
Verbenik — Serbian code of Stefan Dushan 755

11. Mohammedan and Austrian law in the Balkans. ... 763

(IV) Russia Page

12. Four periods in Russian legal history. 765

13. Early Germanic rulers — Greek church law from Byzan-
tium — Code of Yaroslav the Just 768

14. Centralized feudalism— Ivan the Terrible and his

bloodthirsty rule 772

15. Trial methods in the 1500’s 779

16. Tsar Alexis and Chancellor Nashchokin — Bureaucracy

Peter the Great — Futile code-commissions — Cather-
ine’s code plans . 785

17. Emperor Nicholas I and Chancellor Speransky — The

Svod Zakonof code — Reforms of judiciary organization 794

18. Revolution of 1917 — Soviet codes and justice 797

CHAPTER XII .

The Germanic Legal System
(I) First Period

1. Odin and Valhalla — Predatory conquest, the Vikings’

vocation 813

2. Germanic justice secular, not priestly, and democratic,

not monarchic The Ting, and the Hill of Laws, in
Iceland — Law-men and law-speakers — Procedure . . . 814

3. The lawsuit in Njal’s Saga— The deemster in the Isle of

Man 818

4. Four periods of Germanic law 829

(II) Second Period

5. Migrations from Northern and Eastern into Western

and Southern Europe — Law “personal” and written . . 831

6. Code of the Salic Franks — Edict of the Lombards —

Visigothic Code — Scandinavian Codes 835

7. Charlemagne the legislator 839

(HI) Third Period

8. Law becomes territorial 839

[XXVI]

[XXVII]

9. Period of the Thousand Local Codes — Code of Mon l- Page
pellier ,s * *

10. People’s law-books, as common law — Mirror of Saxony

— Trial by battle — Mirror of Swabia < s 19

11. Courts of lay-judges — Some judgments of the SchoelTen

— Oaths and ordeals ,S;> I

12. Written deeds — Monks as conveyancers sr,s

(IV) Fourth Period

13. Germanic law transformed by Maritime, Papal, and
Romanesque law — The Imperial Chamber of Justice. . SOI

Volume Three

Prologue to Chapters XIII , XIV , XV
CHAPTER XIII .

The Maritime Legal System

(I) The Common Law of the Sea

1. Egyptians and Phoenicians

2. Rhodian law

3. Code of Amalfi

4. Venice and Genoa

5. Barcelona — Consulado del Mar

6. Laws of Oleron— Oak Book of Southampton

7. Sea-laws of Wisby— Hansa Shipping Ordinance— Shift

of the centre of code-making from East to West and
North

8. Unity of evolution — Rules for jettison, compared. . .

9. Mariners’ self-government

10. Court-judgments— Legislative process in the Hansa

ordinances

(II) The National Laws of the Sea

11. French Marine Ordinance — Other national codes. . .

(Ill) The Common Law of the Sea , Once More

12. York-Antwerp Rules — Hague Rules of 1921

[XXVIII]

87 5
880
880
882
885
893

893

902

904

900

914

918

13. The Bill of Lading as an international Common Law Page

of the Sea 923

CHAPTER XIV .

The Papal (or Canon) Legal System

1. The early claim of universal jurisdiction for St. Peter’s

successor — Extension of the Church’s rule from the
Balkans to Greenland 935

2. The judicial and legislative system — The Cardinal

Chancellor— The Sacra Romana Rota — An Opinion by
Coccinus — The Consistory and the Congregations . . 937

3. Compilation of the recorded sources — The Decretum of

Gratian — The rise of Canon Law as a system — Doctor
Johannes Andreae 942

4. The Decretals of Pope Gregory IX — A Decretal in-

validating a usurious mortgage — A Decretal regulating
criminal procedure 947

5. The Corpus Juris Canonici — Pope Innocent III, the

great legislator — Culmination of the Church’s sway
under Innocent III 951

6. The Church courts — Their extensive and progressive
influence — St. Ives, the church judge and patron saint

of the legal profession 955

7. Rise of nationalism undermines the Church’s political
authority — The Council of Trent — The statutes of
Henry VIII — Absorption of the Papal jurisdiction

by national courts and legislatures 961

8. Codification of the Papal Regulations in 1917 — The

Codex Juris Canonici 965

CHAPTER XV.

The Romanesque Legal System
(I) Resurrection of Justinian's Law-Books

1. Bologna and the Germanic conquerors 981

2. I rnerius’ lectures on Justinian’s texts. 983

[XXIX]

3. The first law school — Government by students Page

Records of the law-student guilds . . 9N(i

4. Eminent status of the law-professor — The glossators . 991

(II) Adaptation of Roman Law

5. The practicians — Opinions on cases — Bartolus. . . . 991

6. New court-houses in Italy and France — Palais cle

Justice at Paris 999

7. Spread of Roman law studies — Bracton and Azzo. . . 1,007

8. Shift of leadership from Italy — Cujas in France. ... 1 ,000

9. Netherlands and Scotland 1 ,0 1 2

10. Germany — Reception of Roman Law — Carpzov

Windscheid and Von Ihering 1,015

(III) Nationalization of Roman Law

11. Roman law as a secondary law only, alongside of local

law 1 ,02 1

12. The nationalizers, Dumoulin, Colbert, Pothier, in France 1 ,022

13. Code Napoleon — Nationalization in other countries. . 1,027

(IV) Expansion of Romanesque Law

14. Scientific and political motives — Spread of Romanesque

law to other continents 1,033

CHAPTER XVI.

The Anglican Legal System

(I) Building a Common Law

1. Diverse racial and feudal elements 1,054

2. Unification— Insular location — William I, Henry II,

Edward I— Domesday Book — Westminster Hall . . . 1,054

3. Instinct for law and order — Bracton — Guilds of lawyers

— Inns of Court — Year-Books 1,058

(II) Rejecting the Romanesque Law

4. Legal patriotism — Littleton, Fortescue, and Coke. . . 1,077

5. A strong legal profession — Inns of Court 1,080

[XXX]

(III) Cosmopolitanization and Expansion Page

6. Crudity of the 1400’s 1,090

7. Science and learning of the 1600’s — Coke, Bacon, and

Selden 1,091

8. Commercial and colonial expansion — Mansfield and

Blackstone 1,094

9. Anglican law belting the globe — The American Bar As-
sociation in London, 1924 — Role of a professional class

in maintaining a legal system 1,098

CHAPTER XVII.

Epilogue: The Evolution of Legal Systems

Legal systems as a whole, in contrast to specific legal
ideas or institutions — General survey of the conception 1,119

(I) Comparative Law, in general 1,120

(II) Comparative Legal Institutions 1,121

(III) Comparative Legal Genealogy, or Corporealogy . . . 1,122

1. Corporeal method in comparative law 1,123

2. Limited number of legal systems, or bodies. 1,125

3. Problems peculiar to legal systems 1,126

4. Causes of the creation, survival, or disappearance of a

legal system 1,127

5. Existence of a trained professional class, as necessary to

a legal system 1,129

APPENDIX

A World-Map of Present-Day Legal Systems 1,133

List of Illustrations 1,147

Index 1,163

[XXXI]

One picture is worth ten thousand

WORDS.

Old Chinese Proverb

All histories separated from their liv-
ing DOCUMENTS ARE EMPTY NARRATIVES.

And, since they are empty, they fall

SHORT OF THE TRUTH.

Benedetto Croce

“History, Its Theory and Practice", p, 17 (1921)

Prologue

I N these days, more potently than ever, the peoples of
the world find themselves drawn together towards better
mutual understanding. The science of Law, too, is having
its share in this grand phenomenon. But, for the wise
understanding of the present, a clear knowledge of the
past is necessary. Yet the past is gone from sight. Can
it ever be reconstructed, so that we may understand
better the spirit and the atmosphere in which disputes
were settled, laws were debated, codes enacted, and
justice dispensed?

If we are ever to interpret fully the cold written records
of the world’s legal systems, other than our own of today,
must we not first seek to restore, in the mind’s eye, the
environment in which the several peoples lived and moved
and had their being, and the setting of the distinctive
events and traits in the history of their law? May we
not, by pictures, give life and reality to the narrative?
May we not take a temporary flight above the earth, look
down upon the globe, and there watch the Panorama of
the World’s Legal Systems unroll before us, from the
earliest past down to the present day?

Such is the purpose of the ensuing chapters.

But what were, or are, those legal systems? Not
many. They can be reduced to a few, in all. That is,

[ 3 ]

Prologue

amidst the vast and changing welter of local customs,
scattered rules, and casual decrees, which every tribe and
people has devised for its daily life, throughout all times
and places in the world’s history, there emerge only a few
peoples who have developed a well-defined, organized,
continuous body of legal ideas and methods, reaching (he
dignity and solidarity of a legal system. These alone will
occupy our attention.

Arranging them broadly in order of time — that is, the
dates of their respective beginnings in historical times —
the systems are these: Egyptian, Mesopotamian, Chi-
nese, Hindu, Hebrew, Greek, Maritime, Roman, Keltic,
Germanic, Church, Japanese, Mohammedan, Slavic,
Romanesque, Anglican, — sixteen in all. By a chart
one may gain a general conception of the relative
age and endurance of the sixteen systems here to be de-
scribed. The periods indicated on the chart for begin-
nings signify merely an approximate or tangible date; the
beginnings were no doubt in all instances somewhat
earlier . 1

Some of these systems are gone; some remain. The
Anglican, the Romanesque, and the Mohammedan, which
are among the most youthful, today cover the greater part
of the world's population. The Egyptian and the Meso-
potamian, the oldest, have long disappeared. The Hindu

U]

Prologue

naturally follow the Mesopotamian, in (lie narrative.
And the story of Europe’s law, since the Christian era,
can best be told by describing first the Keltic, Slavic, and
Germanic systems, and then turning back to the begin-
nings of the Maritime and Church systems, whose records
far antedate those of the other three.

How shall we then, with the aid of pictures, seek to
restore, to the mind’s eye, the environment in which these
various systems have developed during the last six
thousand years?

In each one, let us recall to the eye the edifices in which
they dispensed law and justice (whether temples, palaces,
tents, courthouses, or city-gates) ; their principal men
of law (whether kings, priests, legislators, judges, jurists,
or advocates) ; and their chief types of legal records
(whether codes, statutes, deeds, contracts, treatises, or
judicial decisions). We may thus hope to reconstruct
more vividly some principal impressions of their legal
life, to understand more clearly their spirit, and to per-
ceive better the contrasts between their distinctive traits
and their several fates.

And first, the Egyptian Legal System :

[ 6 ]

/

The lifiyl>tiau Lena I System

1. Egypt and tlu* Nile* Valley The earliest
legal system.

2. The king the fountain of justice — The chief
judge and prime minister — The courts.

T Maat, the goddess of justice — Egyptian
philosophy of justice — Harmhab’s search
for the perfect judges— Thu tmose’s in-
structions to his chief judge.

4. The king as legislator — Menes, the first
law-giver — Harmhab, the legislator -king
— The lost codes.

f>. Transactional documents — Pictographs —
Ramses IPs treaty with the Hittites —
Hieratic script — Uah’s will —
Demotic script — Bond for release of a
prisoner — M arriage-contract — Greek
script — Roman decision in Greek.

6. Judicial procedure — Oldest court record —
Lawsuit of Mes v. Khay — Rules for pro-
cedure — Trial for treason — Trial for tomb-
robbing.

7. Papyrus of Hunefer — Judgment of the
Soul.

8. Egyptian system submerged under Greek
and Roman and Mohammedan rule.

I. 1 — Map of Egypt

l

The Egyptian Legal System

HK true Egypt, l>oth in earliest times and now,
is nothing more than the valley of the Nile 1 ^—
the bed of land which that mighty river leaves
uncovered for a part of each year, and then reclaims and
recovers by its beneficent inundations. In this fertile
narrow valley, seven hundred miles long, a teeming
population of some eight millions had early developed an
elaborate civilization.

Egypt is the most productive country in the world;
and in its most flourishing age is said to have contained
twenty thousand cities. It deserved to be called, even
more than modern Belgium, “one great town.” Its
location brought it into contact with all the great primi-
tive race-stocks — alike of Africa, of Asia, and of Europe;
and to all of them were transmitted some of its literary or
artistic or legal ideas.

Egypt’s legal system goes back, in veritable historic
annals, to beyond B. C. 4000. In its later stages, it was
as advanced, in its way, as the superb Egyptian archi-
tecture, which has long commanded the modern world’s
respect for its incredible massiveness, its engineering
skill, and its decorative brilliance. The legal system of
Egypt, the basis of this elaborate and luxurious civic

[ 11 ]

I. Egyptian Legal System

life, persisted through many vicissitudes, under invaders
from Arabia and Mesopotamia and Persia and Greece;
until finally it was supplanted in Caesar’s time by the
irresistible Roman system.

2. The palaces of early Egypt, 2 in which the king
and his thirty supreme judges administered justice, were
the focus of government. The place of justice was the
great hall, with two rows of columns, open at the end.
Here were kept the records of title and boundaries, of
wills and contracts. Here also all actions were filed.

Originally the office of prime minister and of chief
judge were separate; but soon after, and till the end of
the kingdom, they were found merged, and the title
“chief judge” signified always the king’s chief minister.
In English history, at the Norman period, an analogous
episode enables us to appreciate this union of functions;
for under Henry II the Justiciar, so-called, was second
only to the king, disposing of every sort of business, con-
trolling the finances, and presiding over the king’s court
of justice in Westminster. In Egypt, as in all systems
prior to the Roman, justice and general administration
were not clearly separated. The administrative officials
acted also as local judges. There were six provincial
courts, and these were under a central court, presided
over by the king’s chief justice; and the chief justice held
daily sittings in the palace, as Pharaoh’s deputy.

I. 2 — Audience Hall at Philae

Here the king and his judges administered justice; and here were
kept the records of title, of contracts, and of wills

X

I. 3 — Maat, Goddess of Justice

The feather of justice, erect on the head-dress, was her emblem; and
her image was worn on a gold collar by the Chief Justice

3. Justice and Judges

Nevertheless, the Egyptian king was constitutionally
the sole supreme ruler. 1 le ruled according to law; but
he was its autocratic spokesman. In theory of law, every
yard of land belonged to him; every man belonged to
him, alive or dead, for none could even be buried without
the king’s assent. All law and all justice proceeded from
him.

3. In the Egyptian theology, Maat was the goddess
of justice. 5 The feather of justice, erect on her head-
dress, was her emblem ; and her image was worn on a gold
collar by the chief justice. The session began when he
donned this emblem, and judgment was given by handing
it to the successful litigant, in token of his success.

The word “maat” in Egypt had the basic meaning of
“straight”, or “true”, and hence “just”. (So also in
Greek the word “kanon” meant a “straight rule”, hence
a “law”; and in Latin “rectum” meant “straight”, hence
“right” ; and in modern Italian “diritto” means “straight”,
“right”, and “law”.) In Egypt the just and upright
man was said to have “maat”; and the Egyptian kings
sometimes assumed the title, “Sun of Maat” or “Justice”.

No treatises on law have yet been discovered, and it is
not probable that they existed. But the Egyptian king’s
philosophy of the scope of his attribute of justice may be
gleaned from a passage put in the mouth of Ramses III,

US]

/. Egyptian Legal System

I. 4 — Ramses Ill’s Domesday Book

in his great survey or record of the kingdom’s wealth — a
sort of Domesday Book.* The papyrus containing this
Domesday Book is one hundred and thirty-three feet
long, the longest known; and it is called by Professor
Breasted “the most sumptuous now extant.” At one
paragraph in this record, the king recites his achieve-
ments as a j ust ruler : a

"I planted the whole land with trees and green things, and made
the people to dwell in their shade. I made the land safe, so that a
lone woman could go on her way freely, and none would molest her.
I rescued the humble from their oppressors. I made every man safe

[141

J* Justice find Judges

in his homo. I preserved I lie lives of those who sought my court of
justice. 'I'lie people were well content under my rule.”

In the 12th dynasty, Khnem-hotep writes of King
Amcnemhet I :

“His majesty came that he might abolish wrong, . . . set right
the abuses, and restore what one city has taken from another; allot-
ting the water-course rights according to the recorded titles of
former times, that he might do justice.”

And one of the early judges, Hetep-her-khut, in the
fifth dynasty, says of himself,

“I never took away anything by force from any man. I never
did an act of oppression to any man. For God loveth the thing
that is just.”

One long edict of King Harmhab has survived ; and a
passage in it reveals to us, not only this king’s active
interest in the administration of justice, but the world-old
prevalence of the problem how to find the just and com-
petent judge. The passage reads:

[Harmhab' s Edict for Judges .] b “I have sailed and traveled
throughout the entire land. I have sought out two judges perfect
in speech, excellent in character, skilled in penetrating the innermost
thoughts of men, and acquainted with the procedure of the palace
and the laws of the court. I have set them one in each of the two
capital cities, North and South. I have furnished them with the
official records and ordinances. I have instructed them in the way
of justice. I have said to them, 'You shall not take money from one
party and decide without hearing the other; for how could you sit
as judges upon other men's deeds when one among you is himself
committing an offence against justice? The penalty for such an

\1B]

/. Egyptian Legal System

offence shall be death.’ And I the king have decreed thi.s, that the
laws of Egypt may be bettered, and that suitors may not be op-
pressed* For I the king have in memory the acts of oppression
which have been done in the land.”

One of the most impressive passages in the annals of
the world’s justice is the speech of instructions purporting
to have been pronounced by King Thutmose III (who
ruled at the height of Egypt’s power, about B. C. 1500) in
appointing Rekhmire to the post of chief judge over the
kingdom; the instructions are recorded on the tomb of
Rekhmire, and here are a few of its sentences: 0

[ Thutmose Ill's Instructions to Chief Justice Rekhmire .] “ Regu-
lation laid upon the chief judge, Rekhmire. The officials were
brought to the audience-hall; his majesty commanded that the
chief judge, Rekhmire, be presented for appointment for the first
time.

“His majesty spake before him: Take heed to thyself for the
hall of the chief judge; be watchful over all that is done therein.
Behold, it is a support of the whole land ; behold, as for the chief
judge, behold, he is not sweet, behold, bitter is he, when he speaks

Behold, he is not one setting his face toward the

officials and councilors, neither one making brethren of all the
people . . . . . . . Mayest thou see to it for thyself, to do
everything after that which is in accordance with law; to do every-
thing according to the right thereof lo, it is the safety of

an official to do things according to the law, by doing that which is
spoken by the petitioner

“ Tt is an abomination of the god to show partiality. This is the
teaching: thou shalt act alike to all, shalt regard him who is known
to thee like him who is unknown to thee, and him who is near to

f 1R 1

4. Legislation

. . . like him who is Ihr ..... An official who does this,

I hen shall he Nourish greatly in the place.

“‘Do not avoid a petitioner, nor yet nod thy head when he
speaks. As for him who draws near, who will approach to thee, do

not the things which he saith in speaking. Thou

shall punish him when thou hast let him hear that on account of
which thou punishest him.

“'Be not enraged toward a man unjustly, but be thou enraged
concerning that about which one should be enraged.

“‘Show forth the fear of thee; let one be afraid of thee, for a
prince is a prince of whom one is afraid. Lo, the true dread of a
prince is to do justice.

“'.... Thou shalt do thy office, as thou doest justice.
Lo, one shall desire to do justice . . ... . Lo, one shall say of
the chief scribe of the chief judge: ‘A scribe of justice’, shall one

say of him”’.

4. The king was also, in theory, the sole legislator.
The earliest human law-giver, in Egyptian tradition, was
named Menes (or, Mna); his date in history was as early
as B. C. 3200. His emblem was a bull; and in a hiero-
glyph, the most primitive form yet discovered, Menes is
shown sacrificing, with his bull nearby; and the later
kings of Egypt were fond of assuming the appellation
“Mighty Bull.” But an astounding coincidence, still un-
explained by the science of comparative law, is not only
that this name of the first human law-giver, as handed
down by tradition, was substantially the same in three of
the oldest civilizations — Menes, in Egypt, Minos in Crete,

[ 17 ]

I. Egyptian Legal System

and Manu in India; but that in all three also the bull was
the animal held sacred as his emblem.

Some of these royal legislators’ names are preserved in
fame, for the codes which they promulgated. The great-
est was Harmhab, who lived about B. C. 1100; and a
portrait statue of him has survived into modern times. 5
Most of the statues that are extant are conventional
figures; but this one happens to be a portrait-statue, and
it has thus a rare impressiveness. (The great Harmhab,
by the way, had married the aunt-in-law of King Tut-
ankh-amen, who has in modern times been brought to
popular attention.)

The codes in Egypt were placed on the table in court
in forty rolls before the judges. But the codes themselves
have all disappeared — a colossal calamity for the history
of law.

5. Yet the Egyptian legal transactions, both official
and private, are amply preserved, to the triumph of
modern archaeology.

By reason, however, of the four thousand years over
which they range, covering a long period of linguistic de-
velopment, they are found in a succession of four different
scripts — the pictographic, the hieratic, the demotic, and
the Greek.

[ 18 ]

/. Egyptian Legal System

First came the hieroglyph, 6 or pictograph — a symbolic
word-picture, apparently the first script-invention of the
human race; this was often in colours, painted on the
walls. In this earliest form of script, no strictly legal
transactions or judicial records have yet been found. But
one of the very first international treaties in world's
history is recorded in this script, on the wall at Karnak. 7
This was the treaty of peace between Ramses II and the
king of the invading Hittites, about B. C. 1300. Its pro-
visions about extradition reveal the arrival of the Egyp-
tians at the practical use of some of the standard con-
cepts of modern jurisprudence:" 1

[Extradition Clauses in Ramses IPs Treaty .] “Treaty made
between the great chief of Kheta . . . and the great ruler of
Egypt .... a treaty of peace and fraternity, making peace
between them forever. . . .

“Article 9. If any official of the territory of Egypt shall abscond
and come to the great chief of Kheta, he shall not re-

ceive them into his service, but shall deliver them back to the great
ruler of Egypt their sovereign. . . .

“Article 11. Or if any official shall abscond from the territory

of Kheta and come to the great ruler of Egypt, he shall

not receive them into his service, but shall deliver them back to the
great chief of Kheta. . . .

“Article 16. But any man who may thus abscond and be de-
livered back to the great ruler of Egypt shall not be prosecuted for
his offence; his property shall not be seized nor his wives nor chil-
dren, nor himself be put to death nor mutilated; he shall not be
prosecuted for his offence.

[ 20 ]

I. 6 — Hieroglyphic Script, or Pictograph
This passage is from a wall in the Pyramid of Gizeh

[ u]

I. 7 — Ramses II’s Treaty with the Hittites
Recorded on the wall at Karnak; this is one of the first international treaties in the
world's history, dating about B. C. 1300

I. Egyptian lx gal System

"Article 17. Likewise any man who may thus abscond and be
delivered back to the great chief of Khela shall not be prosecuted
for his offence; his property shall not be seized nor his wives nor
children, nor himself be killed nor mutilated; he shall not be prose-
cuted for his offence.”

Thfe second and later kind of script was the hieratic —
a shortened form, used by the educated classes. In this
form we possess a will, from the reign of Amenemhet III,
which is the oldest testamentary document now extant
in the world; 8 the best authorities place it about B. C.
1805. There are older crude stone inscriptions in the
nature of wills; but this is the oldest known testamentary
document. In its form and style, it shows already an
advanced technique; it reads: 6

[Will of Uah\ “I, Uah, devise to my wife Sheftu, the woman
of Gesab called Teta, daughter of Sat Sepdu, all properties given to
me by my brother Ankh-ren. She shall give it to whomsoever she
may see fit of her issue born to me.

"I devise to her the Eastern slaves, 4 persons, that my brother
Ankh-ren gave me. She shall give them to whomsoever she may
see fit of her children.

"As to my tomb, let me be buried in it with my wife alone.

"Moreover, as to the house built for me by my brother Ankh-
ren, my wife shall dwell therein and shall not be evicted by any
person.

"The deputy Sebu shall act as guardian of my son. Done in
the presence of these witnesses:

"Kemen, Decorator of Columns,

"Apu, Doorkeeper of the Temple,

"Senb, son of Senb, Doorkeeper of the Temple.”

[ 22 ]

The oldest known testamentary document, dating about B. C. 1800

a cursive

/. Egyptian Legal System

The third kind of script was the demotic
and popular form. An example of the demotic script is
found in a bond 9 given for the release of a jail-prisoner,
about B. C. 250; apparently the transaction is analogous
to the early English “mainprise”; here a party sentenced
to imprisonment is bailed out, for economy's sake, as
temporary serf to some citizen or official who executes
this document promising to produce the prisoner on
demand of the inspector:*

[Bail-Bond.] "Year 39, 20th day of month Tybi, reign of king
Ptolemy. Teos, son of Pozz, whose mother is Herieus, farmer of
the royal domain of the township of Souchos Arsinoe, chief watch-
man of the district of Themistes. I hereby go bail for the farmer
Gyl-Isis, son of Thotemheb whose mother is Tatemounis [note that
the party identifies himself through his grandmother, not his
grandfather], who is imprisoned by thine order. Thou hast en-
trusted him to me, and I will cause him to appear before thee or thy
representative in the township of Souchos Arsinoe and the district
aforesaid, from and after the said date at any time when thou shalt
come to inspect the said district. If thou reclaimest him, I will
bring him to the place which thou shalt designate in the township
on five days’ notice, whenever thou shalt come on inspection, with-
out any privilege for him to take sanctuary in a divine temple or at
a king’s altar or a place of swearing or a place of asylum. If thou
reclaimest him, and I do not bring him to the place designated with-
in five days after notice, at any time that thou mayest come to in-
spect the said district in the said township, I shall submit to any
terms that may be imposed by thee, on the day next ensuing the
said fifth day, without dispute or further delay. All my property,
now or hereafter owned, shall be security for the obligation herein

[U]

I. 9 — Bail-Bond for a Jail-Prisoner
The party sentenced to imprisonment is bailed out as temporary serf
by the obligor of this instrument

[25]

/. Egyptian Legal System

described, until I shall have performed it to thee. 1 shall not be
entitled to assert that I have performed all the terms of this in-
strument now delivered to thee. Thy representative is empowered
to enforce any terms to be imposed on me under this instrument,
and I will submit to his directions, unconditionally and promptly. —
Written by [the notary] Marres, son of Neitheus”.

But the types of legal transaction represented in all these
documents are numerous — marriage-contracts, deeds of
land and of houses, leases, sales, wills, and all the familiar
ones of every advanced system. In this marriage-
contract (from the fourth century before Christ ) 10 it is
the woman who has the option of divorce, and retains the
greater property-interest : 8

[Marriage- Contract.] “In the month Athyr of year I of King
Khabbash, the Lady Settyr-benne, daughter of Peteharpokrates
and Semminis, has said to Teos, son of Pow and Nesoharpokrates:
'Thou makest me thy wife, thou givest me two and a half silver
staters as wedding-gift. If I divorce thee as husband, hating thee
and loving another more than thee [!], I shall restore to thee one-
half this wedding gift. I grant unto thee one-third of all my
property acquired during our marriage. This contract, a duplicate
handed to thee, is hereby acknowledged in the presence of sixteen
witnesses, and shall not be changed without thy consent, either
orally or in writing.' Peteharpokrates, Notary.”

These terms illustrate one of the unique features of the
native Egyptian system — the independence and equality
of women with men in all legal relations; and the Egyp-
tians are apparently the only race-stock that retained the
institutions of equal woman-right, while also advancing

\m

\27 1

. 10 — Marriage-Contract

/. Egyptian Legal System <*»,

to a highly complex civilization, in sharp contrast with
the above marriage-contract are some others dating under
the Greek domination, two centuries later. In these later
marriage-contracts it is the husband who speaks, and it is
thus the husband who says, “If I divorce thee, I shall
restore thy dowry”; and in these contracts the woman
does not grant to the husband a share of her acquisitions
during marriage, but brings to him at the wedding a
dowry of specified value, which remains at her disposal.
This contrast between the two types of marriage-con-
tracts foreshadows the process of gradual undermining
and transformation of the ancient native Egyptian
system under the successive influences of Greek law,
Roman law, and Mohammedan law, during the ensuing
thousand years after Alexander the Great.

The fourth kind of script used in Egypt was the Greek.
Its vogue is shown 11 in decisions by Roman praetors in
Egypt, between Roman parties, written on papyrus in
Greek, and dating in the third century A. D. The Greek
language came widely into use under the domination of
Alexander and his successors, three centuries before
Christ, and remained as the standard script for centuries,
even under the Romans and down to the time of the
Arabs.

It was through the Greek and the demotic scripts that
the mysterious pictographs came finally to be deciphered,

\ 28 1

/. Egyptian Legal System

just a century ago, by Young and Champollion. tor the
tablet known as the Rosetta Stone was found to bear a
tri-lingual inscription, in pictograph, demotic, and Greek,
dating from the Greek period of the Ptolemies; and thus
the secret of the pictograph was slowly unravelled.

6. There was no profession of advocates in the
Egyptian system. But in their law-suits the practice of
written pleadings had been devised. The Greek historian-
traveler Diodorus has preserved for us a brief description
of the proceedings; 11 and his comments on the difference
between the royal courts of Egypt and the popular courts
familiar to him in the Greek cities (post, Chap. VI) reflect
traits of human nature that will be recognized by the
modern lawyer:

“The judges are chosen ten each from Heliopolis,
Thebes, and Memphis; and this court, it may be con-
ceded, is in no way inferior to the Athenian Areopagus or
the Spartan Senate.

“Upon assembling, this bench of thirty chooses from
itself the best one as chief justice, and in his stead the city

names another judge. The stipends for their maintenance

and other necessaries are supplied by the king, a much
larger sum going to the chief justice. He used to wear hang-
ing from his neck by a chain of gold an image made of the
most precious stones, to which they give the name of Truth ;

6. Judicial Procedure

when this is put on by the chid justice, it marks the be-
ginning of the proceedings. Then the eight books, in
which arc contained all the laws written out, being laid
before the judges, the custom was that the complainant
should present the particulars of his case in writing, first
the charge, then the facts, and then the amount of damage
done. Next, the defendant, after receiving from the
complainant the document of complaint, answers in
writing each point, by asserting either that he did not do
it; or that if he did it was not wrongful; or, if it was, it
merits a less penalty. Then the complainant replied in
writing, and the defendant made a second answer.

“After the parties had thus twice presented their case
in writing, then it was the task of the thirty judges to
discuss among themselves their judgment and of the chief
justice to hand the image of Truth to one or the other of
the parties [in token of obtaining the judgment].

“Such among the Egyptians is the manner of con-
ducting all formal proceedings of the courts [i. e. without
any speeches from advocates]. For they believe that
from speeches of advocates much clouding of the legal
issues would result; the cleverness of the speakers, the
spell of their delivery, the tears of the accused, influence
many persons to ignore the strict rules of law and the
standards of truth. For very often [in other countries]

l SI 1

r mn l

/• Kgyfitian I a' gal System

one sees experienced members of courts, whether through
fallacious argument or pleasing voice or compassionate
emotion, swept away by the eloquence of the speaker;
whereas [the Egyptians] believe that if the parties them-
selves submit their case in writing, the bare facts alone
being thus taken into account, a more correct judgment
will be reached; and thus the readier speakers will gain no
advantage over the slower ones, nor the skilled over the
unskilled, nor the bold lying ones over the diffident truth-
ful ones; but that all will have equal opportunity before
the law by simply allowing ample time for the parties to
study their pleadings and for the judges to deliberate and
decide upon the allegations of the respective parties.”

We do not possess the pleadings themselves, but we
have some court records of them. This papyrus, pre-
served in the hieratic script, is the oldest court record in
the world yet discovered; it dates from about twenty-five
hundred years before Christ . 12 The record says : 1

[The Oldest Court Record .] “The party Sebekotep alleges that
one Usser, now deceased, father of the other party Thau, made the
said Sebekotep to be guardian of his, the said Usser’s wife and chil-
dren, and to that end delivered all his property to the said Sebe-
kotep, to be applied to the use of the said Usser’s family, whether
or not the property increased or decreased. But the party Thau
denies that his father ever made any such conveyance.

“If the said Sebekotep produces credible witnesses who will
make oath that the said Usser did in their presence deliver the

[ 33 ]

12 — Court- Minute, about B. C. 25CH
The oldest extant court record in the world

/. Egyptian Legal System

property on the terms set forth in the said Sebekotep’s written
pleading, then the property is to remain in his possession. But if e
does not produce such witnesses, then none of the said Usser s
property shall remain in Sebekotep’s possession, but shall be de-
livered to the said Thau, son of Usser.

Of civil cases, few records have yet been discovered.
But the celebrated lawsuit of Mes v. Khay is preserved
in fragments ample enough to reveal a highly developed
system of judicial inquiry and formal litigation. This
case took place in the reign of Ramses II (say, B. C.
1300). It was an appeal from a prior judgment, forming
apparently the fifth stage in a long series of lawsuits over
the title to land. Mes, the appellant, asserts that the
prior judgment in favor of Khay, the appellee, had been
obtained by the use of fraudulent entries in a land register
affecting the party’s descent and by forged documents of
title. The final judgment on this appeal is unfortunately
missing in the papyrus; but the parties’ briefs, and the
abstract of testimony, read as follows: 1

[Lawsuit of Mes v. Khay.] [1. Brief of the Plaintiff Mes.} [a.Early
History of the Estates of Neshi.] What was said by the ... •
of the bearer of weapons, who . . . Rameses, Mes.

“As for me, I am the son of Hui, the son of Urnero, the daughter
of Neshi. A division of property was made for Urnero and her
brothers and sister in the Great Court in the time of Horemheb.
They sent the clerical Iniy, who was an officer of the Great Court,
to the district of Neshi: and a division was made for me and my
brothers and sisters; and they made my mother, the dweller in the

[ 34 ]

6. J mini a I I* tore dure

(own, Urnero, a < 1 1 1 1 i 1 1 is I mini for her brothers and sisters. Then
Takharu, the* sister of Urnero, pleaded together with Urnero before
the ( ireat Court. The court officer was sent forth, and they caused
each of the six heirs to take cognisance of his portion. Now the
king Amosis I had given . . . arourae of land as a reward to Neshi
my father. And further, since king Amosis I, this land was held by
one heir after another until this day. Then Hui, my father, and
his mother Urnero pleaded together with their brothers and sisters
before the Great Court and the Court of Memphis .... writing.

“Then my father Hui died.

[b. The Litigation between Nubnofret and Khay.] “And Nub-
nofret my mother came to till the portion of Neshi my [grand]
father, but she was not allowed to till it. Then she laid a plaint
against the administrator Khay, and they caused them to appear
before the Court in Heliopolis in the year 14 . . . of King Ramses II.
Then ..... laid a plaint saying: 'Of a truth I am cast forth
from this land of Neshi my father.’ Then she said: 'Let there be
brought to me the registers from the Treasury, and likewise from
the Department of the Granary of Pharaoh. For I am well pleased
to say, that I am the daughter of Neshi. Division was made for
me together with them, but the administrator Khay does not know
my right as a sister.’

“The administrator Khay laid a plaint in the Great Court in
the year 18, and they sent forth the clerical Amenemiopet, who was
an officer of the Great Court, together with him, having a false
register in his hand, whereby I ceased to be a child of Neshi. And
they made the administrator Khay administrator for his brothers
and sisters in the place of my heirship, although I was an heir of
Neshi my father.

[c. Mes Appeals against the Judgment in Favour of Khay.] “And
now see! I am in the district of Neshi my [grand] father, in which
is the land of Neshi my [grand] father. Let me be examined and

[SB]

/. Egypt! <m l Agn! System

let me see whether Umero was the mother ol llui my father, who
was called the son of Neshi, although she is not duly enrolled in the
register, which the administrator Khay made against me together
with the court officer who came with him. I bring a plaint saying:
it is a false register that has been made against me. For verily when
I was examined before, I was found to be inscribed. Let me be
examined together with my coheirs before the notables of the town,
and let me see whether I am the son of Neshi, or whether it is not
so.”

[2. Brief of the Defendant Khay.] [a. Khay’s Version of the
Early History of the Estates.] What was said by the administrator
Khay.

“I am the son of the administrator Userhat, the son of Thaui
.... the son of Prehotep. He gave to me his portion of lands
in writing in the time of king Horemheb before witnesses; and it
was the chief of the stable Hui the son of Prehotep who had tilled it
since the time of king Amenothes. I succeeded to him in the time
of Horemheb unto this day. Then the scribe Hui and the dweller
in the town Nubnofret seized my portion of lands: and she gave
them to the artificer Khay iri.

[b. The Lawsuit between Khay and Nubnofret.] ‘‘Then I laid a
plaint before the Judge in Heliopolis, and he caused me to plead
together with Nubnofret before the Judge in the Great Court. I
brought my testimonies . . . in my hand since Amosis I, and
Nubnofret brought her testimonies in like manner. Then they
were unrolled before the Judge in the Great Court. And the Judge
said to her: ‘These documents were written by one of the two

parties.’

“Then Nubnofret said to the Judge: ‘Let there be brought to

me the two registers from the Treasury and likewise from the
Department of the Granary.’ And the Judge said to her: ‘Very

good is that which thou sayest.’ Then they brought us down-
stream to Per-Ramessu. And they entered into the Treasury of

[ 36 ]

6. J u tilt itil ' Erot ethtre

riumnli, ,iii(l likewise inlo llie I )e|>;u ( menl ol the Granary of
Pharaoli, and ihey broughl l lie I wo registers before the Judge in the
Great Courl. Then the Judge said to Nubnofret: ‘Who is thy

heir among the heirs who are upon the two registers that are in our
hand ?’ And Nubnofret said : ‘There is no heir in them.’ ‘Then

ihou art in the wrong,’ said the Judge to her.

“Then the scribe of the royal table, Kha, the son of Mentuem-
min, said to the Judge: ‘What is the decision which thou makes t
with regard to Nubnofret?’ And the Judge said to Kha: ‘Thou

belongest to the Residence. Go then to the Treasury, and see how
the matter stands with her.’ And Kha went out, and he said to
her : ‘I have examined the documents. Thou are not inscribed in

them.’

“Then they summoned the clerical, Amenemiopet, and they
sent him forth, saying: ‘Call together the heirs, and show unto

them the lands, and make a division for them.’ So did they com-
mand him together with the Court of Memphis.

“Then I sent the ...... Ruiniuma (?) .... who was

overseer of horses. And the officer of the court, Amenemiopet,
summoned Mesmen, saying, ‘Come’: .... Then they sum-
moned him to the West bank. And they gave to me thirteen
arourae of land and they gave lands to the coheirs before the nota-
bles of the town.”

[J. Evidence.] “(1) What was said by the goatherd Mesmen:
‘By Amon and by the Prince, I speak by the truth of Pharaoh, and I
speak not falsely; and if I speak falsely, may my nose and my ears
be cut off, and may I be transported to Kush. The scribe Hui was
the son of Urnero, and, as they say, the son of Neshi. I saw ....
Urnero lands.’

“(2) What was said by the administrator Khay:

‘By Amon and by the Prince. The scribe Hui was the son of
Urnero the daughter of Neshi. And if . . . say: “It is not

[ 37 ]

/. Egyptian Legal System

truth”, then let me be pul to confusion. By Anion'- and by the

Prince .... not cultivate . . . . beyond them.

Their harvest was taxed . . . . ’

“(3) What was said by :

‘By Amon and by the Prince, if they examine and if they find
that I cultivated .... portion .... me, let me be put to
confusion.'

“(4) What said by the priest of the temple of Ptah:

‘By Amon and by the Prince, I speak in truth, and I speak not
falsely; and if I speak falsely, may my nose and my ears be cut off,
and may I be transported to Kush. I knew the scribe Hui the son
of Urnero. He cultivated his lands from year to year, and he culti-
vated them saying: “I am the son of Urnero, the daughter of

Neshi’”.

“(5) What was said by the honey-maker of the Treasury of
Pharaoh Hori:

‘By Amon and by the Prince, if I speak falsely, may my nose
and my ears be cut off and may I be transported to Kush. The
scribe Hui was the son of Urnero; and moreover, Urnero was the
daughter of Neshi.’

“(6) What was said by the chief of the stable Nebnefer:

“Likewise saying: ‘As for the scribe Hui, he used to cultivate
his lands from year to year, doing all that he desired. And they
gathered in for him the harvest of his fields year by year. Then he
pleaded together with the dweller in the town Takharu the mother
of the officer Smentoui. And then he pleaded together with
Smentoui her son, and they gave the lands to Hui, and they were
duly confirmed to him.'

“(7) What was said by the Buthartef:

“Likewise saying: ‘The scribe Hui was the son of Urnero, and
Urnero was the daughter of Neshi.’

[ 38 ]

“Then the magnates of the South shall stand in the aisles before the Chief Judge, . . . and the

:i c 4-u~

6. Judicial Procedure

"(X) Wlial was said by thr dweller in the town Peihay :

‘lly Anion, and l>y (lu* Prince, if 1 speak falsely, may I be sent
lo the back of l he house. The scribe I Jui was the son of Urnero; and
moreover, Urnero was (lie daughter of Neshi/

"0)) Wlial was said by the dweller in the town Pipuemuia:
“Likewise.

“(10) What was said by the dweller in the town Tuy:
“Likewise.”

The precise order of proceedings (apart from Diodorus'
brief account, already quoted) has not been found de-
scribed in any formal Egyptian treatise (and probably none
such were composed). But one may gain an impression
of the daily scene of justice in the great hall of Karnak 13
from the inscription on the tomb of Rekhmire, chief judge,
wherein the king's instructions describe the duties of that
high official : k

[ Proceedings in Court.) “Arrangement of the sitting of the
governor of the residence city, and chief judge of the Southern City,
and of the court, in the hall of the chief judge. As for every act of
this office, the chief judge, while hearing in the hall of the chief
judge, shall sit upon a chair, with a rug upon the floor, and a dais

upon it, a cushion under his back, a cushion under his feet, a

upon it, and a baton at his hand ; the forty rolls of the law shall be
open before him. Then the magnates of the South shall stand on
the two aisles before him, while the master of the privy chamber is
on his right, the receiver of income on his left, the scribes of the
chief judge at his either hand; one corresponding to another, with
each man at his proper place.

“One shall be heard after another, without allowing one who is
behind to be heard before one who is front. If one in front says:

[ 39 ]

I . Egyptian Legal System

‘There is none being heard at my hand’ then he shall be taken by
the messenger of the chief judge.

“Let not any official be empowered to judge against a superior
in his hall. If there be any assailant against any of these officials
in his hall, then he shall cause that he be brought to the chief judg-
ment-hall. It is the chief judge who shall punish him, in order to
expiate his fault. Let not any official have power to punish in his
hall ....

“As for every process-deputy whom the chief judge sends with
a message for an official, from the first official to the last, let him
not be swerved, and let him not be conducted; the official shall re-
peat the chief judge’s message while the deputy stands before the
official repeating his message and going forth to wait for him. The
deputy shall have power to seize the mayors and village elders for
the judgment-hall; ....

“Now, as for every act of the chief judge, while hearing in his

hall ; and as for every one who shall he shall

record everything concerning which he hears him. He who has not

disproved the charge at his hearing, which takes place

then it shall be entered in the criminal docket. He who is in the
great prison, not able to disprove the charge of the chief judge’s
warrant, likewise; when their case conies on another time, then one
shall report and determine whether it is in the criminal docket, and
there shall be executed the things concerning which entry was made,
in order to expiate their offense.

“As for any writing sent by the chief judge to any lesser of-
ficial’s hall, being those which are not confidential, it shall be taken
to him together with the documents of the keepers thereof under
seal of the . . . officers, and the scribes thereof after them; then he
shall open it; then after he has seen it, it shall return to its place,
sealed with the seal of the chief judge. But if he furthermore ask
for a confidential writing, then let it not be taken by the keepers
thereof.

[ 40 ]

6. J u did a I Procedure

“Now, :is for ♦•very pel il inner i<> die chief judge concerning
hinds, lie shall dispatch the process-deputy to him, in addition to a
hearing of the land-overseer and the local council of the district,
lie shall decree a stay for him of two months for his lands in the
South or North. As for his lands, however, which are near to the
Southern City and to the court, he shall decree a stay for him of
three days, being that which is according to law; for he shall hear
every petitioner according to this law which is in his hand.

“Every property-list is brought to the chief judge; it is he who
seals it.

“It is he who administers the gift-lands in all regions. As for
every petitioner who shall say: ‘Our boundary is unsettled;’ one
shall examine whether it is under the seal of the official thereof; then
he shall seize the seizures of the local council who unsettled it.

“One shall put every petition in writing, not permitting that he
petition orally. Every petitioner to the king shall be reported to
the chief judge after he puts it in writing.

“ The records of the township are in the chief judge’s

hall. It is he who hears concerning all lands. It is he who makes
the boundary of every township, the field .... all divine of-
ferings and every contract.

“It is he who takes every deposition; it is he who hears the re-
joinder when a man comes for argument with his opponent.

“It is he who appoints every special judge to the hall of judg-
ment, when any litigant comes to him from the king’s house. It is
he who hears every edict.

“Every report shall be reported to the chief judge by the door-
keeper of the judgment-hall, who reports on his part all that the
chief judge does while hearing in the hall of the chief judge.”

Several elaborate records of important criminal trials
are fortunately extant. Examining magistrates were

[ 41 ]

/. Egyptian Legal System .

deputed to take testimony; and their full report of the
testimony and findings was entered as a record of the
trial. One of these trial records 14 — a sensational one,
for treason — some twelve hundred years before Christ,
opens with a warrant from the king himself, Ramses III,
appointing a special high commission court for this case.
It reads : 1

[Royal Warrant Appointing a Special Court.] “I, the king,
direct that search be made throughout the land and the persons be
arrested and put on trial who are reputed by public ill-fame to have
done this treason. And I commission the Lord High Chamberlain,
the Lord Chancellor [etc., etc., naming them] for the purpose, I
know nothing of the truth of the charges. Do you examine into
them, and then cause the guilty ones to die, either by their own
hand or by the executioner; and this without further reference of the
case to me in person. Take great heed that the innocent be not
punished. But let the deeds of those who are guilty fall surely upon
their own heads, that I may be protected and defended forever on
my throne, as a just king in the sight of Ammon, chief of gods, and
Osiris, ruler of Eternity.”

In the rest of this record it appears that there were
four sets of accused: the principals, the accomplices in

two degrees, and the innocent. The first set were exe-
cuted; the second set were required to commit suicide; the
third set suffered the slicing off of their noses and ears.
The entry in the record for the second set reads thus:

"The following persons were charged with conspiracy with the
principals; they were brought before the special court for trial; they

[ 4 *]

[ 43 ]

I* 14 — Ramses Ill's Special High Commission for Trial of Treason

I the King direct that search be made throughout the land and the persons be arrested and put

w., :n i i ... »)

/. Egyptian Legal System

were tried and found guilty; they were allowed to die by (heir own
hand in the place of trial, and they did so, and were not executed.”

The analogy here to the Japanese theory of hara-kiri is
striking; and those two systems appear to be the only
legal systems adopting that form of penalty.

That the system of judicial investigation was well
developed appears plainly in the record of the famous
Tomb-Robbing Trial, in the reign of Ramses IX; the
incidents of this scandal, echoing down the ages, have
been remarkably corroborated by the excavations of
modern archaeologists. It seems that in the metropolis
of Thebes, where the richly jeweled tombs of the Pha-
raohs were located, rumors of the plundering of the
tombs came to the ears of Peser, mayor of the East side,
and he laid information before the chief judge. The
tombs were on the west side of the city, under a second
mayor, Pewero, apparently a political rival of the other
mayor. The chief judge sent deputies to inspect the
tombs, and some of them were found to be uninjured.
Some of Pewero’s subordinates, treating this as a vindica-
tion of his administration, proceeded to the house of the
other mayor, Peser, and exulted publicly, to his chagrin.
He angrily retorted that the inspection had been a farce.
This slander was reported promptly to the chief judge,
who then directed a trial of the three coppersmiths, em-

U 41

(). Judicial Procedure

ployecs of a temple, who had been accused of robbing
these particular tombs, and one of whom had confessed
when arrested and examined under the lash. The first
passage here quoted shows the method used to test the
truth of his confession ; the second is the record of the final
trial:" 1

[ Trial of the Tomb-Robbers.] [ Examination of the Coppersmith .]
“Then the chief judge and the butler had the coppersmith taken
before them to the tomb, while he was blindfolded as a man ....
He was permitted to see again, when he had reached them. The
officials said to him: ‘Go before us to the tomb, from which you
said: “I carried away the things”. The coppersmith went before
the nobles to one of the tombs of the king’s children .... in
which no one was buried, which was left open, and to the hut of the
workman of the necropolis .... which was in this place saying :
‘Behold, the tombs in which I was.’ The nobles examined the
coppersmith with a severe examination in the great valley, but he
was not found to know any place there, except the two places upon
which he had laid his hand. He took an oath of the king, L. P. H.,
that he should be mutilated by cutting off his nose and his ears and
placed upon the rack if he lied, saying: ‘I know not any place here
among these tombs, except this tomb which is open, together with
the hut upon which I have laid your hands.’ The officials ex-
amined the tombs of the great seats which are in ‘The-Place-of-
Beauty’, in which the king’s-children, king’s-wives, king’s-mothers,
the goodly fathers and mothers of Pharaoh, L. P. H., rest. They
were found uninjured.”

[The Trial.] “Year 16, third month of the first season, day 21;
on this day in the great court of the city; beside the two stelae of
........ the forecourt of Amon in the gate called ‘Praise’.

“People and nobles who sat in the great court of the city on
this day:

f A5 1

I. Egyptian Legal System

“1. Governor of the City and chief judge, Khamwese. . . .

“2. The High Priest of Amon-Re, king of gods, Amenhotep. . . .

“3. The prophet of Amon-Re, king of gods, scribe of ‘The-
House-of-Millions-of-Years-of-King-Neferkere-Setepnere, L. P. H.’,
Nesuamon. ...

“4. The king’s-butler, Nesuamon, the scribe of Pharaoh,
L. P. H. . . .

“5. The major-domo. ...

“6. The deputy. ...

“7. The standard-bearer. . . .

“8. The mayor. . . .

“The governor of the city and chief judge, Khamwese, had
brought in the coppersmith, Pekharu; the coppersmith, Tharoy;
and the coppersmith Pekamen . . .

“Said the chief judge to the great nobles of the great court of the
city: This mayor of the city said a few words to the inspectors and
workmen of the necropolis, in the year 16, third month of the first
season, day 19, in the presence of the king’s butler, Nesuamon, the
scribe of Pharaoh, L. P. H., delivering himself of slanders concerning
the great seats, which are in The-Place-of-Beauty. Now, I, the
chief judge of the land, have been there, with the king’s-butler,
Nesuamon, the scribe of Pharaoh, L. P. H. We inspected the
tombs, where the mayor of the city said that the coppersmiths

had been. We found them uninjured; and all that he

said was found to be untrue. Now, behold, the coppersmiths stand
before you; let them tell all that has occurred.’ They were ex-
amined. It was found that the accused did not know any place in
the cemetery of which the mayor had spoken the words. He was
found wrong therein.

“The great nobles granted life to the coppersmiths

They were reassigned to the High Priest of Amon-Re, king of gods,
Amenhotep, on this day.

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7 . 77 /<? Judgment Pufiynts

“The documents thereof are: one roll; il is deposited in the office
of llu* chief judge’s archives.”

7. The general features of the early Egyptian trial
system are symbolized in a great papyrus, done in picto-
graph, representing the Judgment of the Dead. The soul
of the departed one is summoned to appear before the
great judge and sun-god, Osiris, in the Hereafter; the
departed one here depicted was Hunefer, the king's
chancellor. 16 In this scene, in the left half, Hunefer is
called upon to defend his life-conduct before the judges.
There were forty- two assistant judges; each one took
cognizance of a specific offence, thus together covering the
whole criminal code. The Soul pleaded “Not Guilty" to
each offence, naming them one after another, thus;"

"I have not done evil.

”1 have not robbed.

“I have not broken in to steal.

“I have not stolen secretly.

”1 have not killed men.

“I have not sold wheat with light weight.

”1 have not cheated.

“I have not robbed the temple of the God.

“I have not given false testimony.

"I have not stolen food.

“I have not blasphemed.

“I have not assaulted men.

“I have not committed adultery.

“I have not slandered”, etc., etc.

, U7 1

/. Egyptian Legal System

And the remarkable thing is that this mode of pleading
is still found in modern times, four thousand years later,
in some tribes on the West Coast of Africa; the accused,
who is put to the ordeal of poison, first makes a series of
declarations of his innocence of certain offences, and then
drinks the red-water which the magic-doctor gives him.

In the Egyptian proceeding, the judges (seated above
in the picture) call over the list of offences; and as the
accused answers, an official weighs his heart in the balance
on the left, against the Feather of Justice (of the goddess
Maat) on the right. The scribe Thoth then announces
(in the words of the inscription) : “Saith Thoth, the scribe,
lord of divine words: Behold, I am declaring, in the home
of Osiris, the royal chancellor Hunefer to be true and just.
His heart hath come forth in the scales, and hath not been
found evil.” This expression “true and just” was, in
Egyptian practice, the conventional formula for “Not
guilty”; and on every tombstone was inscribed this
epithet, “true and just” (as a complimentary presumption
that the departed one would be found innocent in the
hereafter!)

In the case of acquittal, the soul is then led by Horus
into the presence of Osiris, the sun-god and great judge
of all, with this formula : 16 “Saith Horus, the deputy of
his father Osiris, and custodian of Hunefer: Behold, I am

r r.R 1

8. Final Submergence

bringing llunefer to (hoc, Osiris, lie hath been judged
by the scales, the tongue of the balance resteth at its
place.”

X. The native Egyptian legal system, here typified
in (he proceedings before Osiris, the supreme last judge
of all men, passed through many phases, and survived
under several foreign dynasties. But it began to be under-
mined in the eighth century before Christ, first by civil
war, then by conquests of invaders from Assyria, Persia,
and Greece. Finally the Roman Caesars arrived to strike
t lie final blow to Egypt’s political independence.

And yet its end, just before the Christian era, was
marked by a scene which reveals how firmly the tradition
of the divine judge Osiris still persisted in the hearts of the
native Egyptian people. For during those last days of
luxurious Oriental festivity, in which Antony and Cleo-
patra recklessly indulged at Alexandria, while the shadow
hung over them of Caesar Octavian’s final impending
blow against Antony’s power, Antony dared to court
popularity before the Egyptian multitude by personating
the sun-god Osiris, with Queen Cleopatra as his consort
Isis.

But Cleopatra was to be the last queen of Egypt.
By the defeat of Antony and Cleopatra at the battle of
Actium, their dominion was shattered. The cold imperi-

[ 49 ]

I. Egyptian Legal System

ous will of Caesar Octavian was proof against Cleopatra’s
last appeal to him for her kingdom and herself. In death
she sought refuge from her chagrin. Egypt, with its
Pyramids four thousand years old, became a mere Roman
province. Roman law and government supplanted more
or less of the native institutions. Seven centuries later
the Arab conquerors brought Islamic religion and law.
After another thousand years the international court
brought the French Code.

And scholars still dispute, as they examine the tons of
records embodied in five successive languages, whether
particular legal customs of the later Egyptian people are
to be traced back to the legal systems, of the Pharaohs, or
the Greeks, or the Romans, or the Arabs. But today the
Pyramids 17 and the pictographs and the papyri are the
only sure symbols of the native Egyptian institutions of
six thousand years ago.

Sources and References
Sources of Illustrations

I. Mop of Egypt. From (he map in Rawlinson , cited infra.

1!. Audience Hall at Philae. From a drawing reproduced in “Bilder- Atlas,”
vol. V, Architecture, plate 2, No. 2 (F. A. Brockhaus, Leipzig, 1875).

3. Maat, Goddess of Justice . F rom a photograph furnished by the Museum of
Ethnography, Florence, of the original in that Museum (1923).

I. Ramses II Vs Domesday Book. From a photograph furnished by Dr. T.
George Allen , Oriental Institute of the University of Chicago, of the facsimile,
plate 79, in Samuel Birch’s edition of the Papyrus Harris (British Museum,
1870).

5. Harmhab, the Legislator-King. From a photograph by the Metropolitan
Museum of Art , New York (1924), of the original in that Museum.

0. Hieroglyphic Script. From a facsimile of a script on the Pyramid of Gizeh,
in Karl Faulmann , “Illustrirte Geschichte der Schrift”, p. 238 (Leipzig,
1880).

7. Ramses IPs Treaty with the Hittites. From a photograph furnished by Dr.
T. George Allen , Oriental Institute of the University of Chicago, of a photo-
graph of the original by Prof. Ludwig Borchardt, Berlin (1925).

8. Will of Uah. From a photograph furnished by John A. Wilson , Oriental
Institute of the University of Chicago, of a facsimile in F. LI. Griffith , “Hier-
atic Papyri from Kahun and Gurab”, of the original in London University
Museum.

9. Bail-Bond for a Jail-Prisoner . From a facsimile in Henri Sottas y “Papyrus
Demotique de Lille”, vol. I, plate I, No. 4 (Geuthner, Paris, 1921).

10. Marriage- Contract. From a facsimile in W. Spiegelberg, “The Papyrus
Libbey” (Toledo Museum of Art, 1907), presented to the Museum by
Edward Drummond Libbey, the discoverer.

11. Roman Law in Greek Script in Egypt. From a photograph by Geo. R.
Swain, Ann Arbor, Mich., of a facsimile in F. Preisigk } “Griechische Papyrus
.... zu Strassburg”, folio 22, the so-called Strassburg Papyrus (Schlesier
& Schweikardt, 2 vols., 1906-7), in the University of Michigan Library.

12. Court- Minute , B. C. 2500. From a photograph furnished by Dr. T. George
Allen , Oriental Institute of the University of Chicago, of a photograph by
Prof. Borchardt t of No. 9010, the original papyrus in the Berlin National
Museum (1925), as reproduced in Moller, “Hieratische Palaographie”, vol. I,
pi. 2.

[ 51 ]

I. Egyptian Legal System

13. Audience Hall in the Palace at Karnak. From a drawing reproduced in
George Rawlinson , “The Story of Ancient Egypt”, frontispiece (Putnam,
New York, 1891).

14. Ramses IIPs Special High Commission for Trial of Treason . From a fac-
simile drawing in T. Deveria f “Le papyrus judiciaire de Turin”, plate I,
col. 2, Journal Asiatique, Aug.-Sept. 1866, p. 200, Nov.-Dee. 1867, p. 478
(Lemercier, Paris, 1866-1867).

15, 16. Trial Scene: Papyrus of Hunefer . From a facsimile of the Papyrus Hunefer
in Sir E. A. Wallis Budge , “Osiris and the Egyptian Resurrection”, vol. II
(British Museum, 1911).

17. The Pyramids at Evening. From the illustration in the National Geographic
Magazine , vol. XXXI, p. 272.

Sources of Documents Quoted in Text

a. Ramses Ill’s Domesday Book. From the translation in Breasted , “Ancient
Records”, cited infra , IV, §210.

h. Harmhab’s Edict. From the translation in Breasted , ibid. Ill, §23.

c. Thutmose Ill’s Instructions to Rekhmire. From the translation in Breasted ,
ibid. II, §§666-670.

d. Ramses II’s Treaty with the Hittites. From the translation in Breasted ,
ibid. Ill, p. 163.

e. Will of Uah. From the translation in Griffith, cited supra.

f. Bond for Release of a Jail-prisoner. From the French translation in Sottas ,
cited supra .

g. Marriage-contract. From the translation in Spiegelherg , cited supra.

h. Diodorus. MS. translation of the Greek and Latin texts in Wesseling’s
edition of Diodorus’ “Bibliotheca Historica”, book I, par. LXXV (ed. 1793,
vol. I, p. 224).

i. Court Record. From a MS. translation furnished by Dr. T. George Allen ,
Oriental Institute of the University of Chicago.

;. Lawsuit of Mes v. Khay. From the translation in Alan H. Gardiner , “Un-
tersuchungen zur Geschichte und Altertumskunde Aegyptens” (Leipzig,
1905, J. C. Hinrichs), as reproduced in Kocourek and Wigmore t “Sources of
Ancient and Primitive Law” (Evolution of Law Series, vol. I, Boston, 1915,
Little, Brown & Co.),

\ 52 ]

Sources and References

*•. s;;;

L 1 liK '' ‘ <,,nlnission - From the translation in Breasted,

^ § 5io. f .ii hC T ° mb - Robbcrs - From translation in Breasted, ibid. IV,
Plea of Not Guilty. From the translation in Budge, “Osiris”, cited supra.

General References

James Henry Breasted “A History of Egypt” (London, 2d ed. 1909); “Ancient
Records of Egypt”, 5 vols. 1907 (University of Chicago Press)

W. Flinders Petrie, “Social Life in Ancient Egypt” (1923).

E. Rollout, " Les obligations en droit 4gyptien, compart aux autres droits de

1 antrqmte” (Pans, 1886); “Prtcis du droit Egyptien compart aux autres

author. t,qU,t6 ’’ (PariS ’ 2 VOlS - 1903); and ° ther later titles b y this

Editi , sW ’ h “ P T tive Civilizations; or, Outlines of the History of Owner-

2 tols "IstlT C ° mmUmt,eS ’ Book F "Ownership in Egypt” (Macmillan.

\ 53 ]

//

The Mesopotamian Legal System

1. Babylonia and Assyria 1 heir mixed storks.

2 . Development of literature and commerce
- ('unciform records of commerce and law.

:i. Deed of storehouse — Warranty deed —
Stone landmark — Marriage-settlement.

•I . Commercial transactions — Promissory note
payable to bearer — Banking records —
Partnership records.

5. Judicial system — Judgment in a boundary
suit — Lawsuit over a will — Action for un-
paid purchase-money — Action by a widow
claiming land — Petition of an accused un-
der arrest.

f>. Legislation — Sumerian code — Parable of
the prodigal son — Hammurabi code —
Codes of Hammurabi, Assur, and Deu-
teronomy, compared.

7. Daniel and the Handwriting on the Wall —
Fall of Babylon.

The Mesopotamian Legal System

HE civilization of Mesopotamia, 1 the region ly-
ing between the watersheds of the Euphrates
and the Tigris, was centered about Babylon,
in the southern portion known as Chaldea, and also about
Nineveh, in Assyria, the northern portion. Assyria was
younger than Babylonia, and yet contemporary; and in
the varying phases of their contiguous growth and rivalry
(comparable perhaps to the relations of Scotland and
England) they represent a single system, in the broad
outlines of legal history.

Mesopotamian architecture was of the massive and
towering type, rising loftily from the wide level plains
beneath; and the tower of Babel, 2 whose top was to reach
unto heaven (as the Scripture narrative reports), was only
one of many similar structures devised by Babylonian
architects.

The civilization of Mesopotamia was built up succes-
sively from several groups of highly talented peoples of
distinct races, — first, a Turanian race, called Sumerians;
then a Semitic stock; and the Semitic stock developed
several branches of its own, — Akkadians at Babylon,
Assyrians at Nineveh, and Arameans.

The legal system emerges in history by perhaps 4000

[ 59 ]

II. Mesopotamian Legal System

years before Christ. It endured amidst successive waves
of conquest from east, north, and west, absorbing one
after another. It lost its racial independence under the
Persians, about 500 years before Christ, and disappeared
under the Greeks, about 100 years before Christ.

2. Mesopotamia was notable for two things: first,
for its early development of original and elaborate forms
of art and literature, and the diffusion of those attain-
ments among all Semitic peoples; and secondly, for its
specially high development of commerce, and thus, dis-
tinctively, of commercial custom and law. The records
of law, commerce, and literature, in vast quantities of
thousands, have been found well preserved in libraries or
archives, and in such bulk that modern philologists have
yet not even had time to study and translate more than a
small portion of them.

These records are virtually all in cuneiform script.
This script is chiefly a sign-language; that is, each char-
acter represents a whole word or idea; thus, there were
several thousands to learn, as in Chinese. This cunei-
form script was itself a development from the pictograph,
or hieroglyph, by abbreviation;* and dictionaries were in
use, showing the pictograph at the left and the cuneiform
at the right of each column. Still later, the Aramean
branch of the Semites brought into use a genuine alpha-

[60]

II. 3 — Early Pictograph
This is a leaf of a dictionary showing the equivalents of
the pictograph in cuneiform

bet, that is, a script in which each character represents
one of the few elemental sounds or syllables which when
combined form all words; and this alphabet was one fore-
runner of the modern European alphabet. But during
the whole period of Babylonia and Assyria, the cuneiform
was the vehicle of all records.

These records were chiefly made on small tablets, or bis-
cuits, of hard clay, usually some three inches long, two
inches wide, and one inch thick, inscribed by a wooden
stylograph with wedge-shaped, or cuneiform, characters;
this document here shown is a deed of a warehouse, some

[61]

[ 62 ]

3. Conveyancing

(>()() years li. ('.< Uolli front and back of the tablet were
used for the writing; and the half-moon shaped lines on the
two narrow margins of the tablet were made by the
parties’ thumb-nails, impressed perhaps for identification.
Modern archaeologists re-transcribe these tablets in
standard script, 5 capable of being set up in printed type;
and thus other scholars, all over the world, may share in
these studies.

3. In these Mesopotamian deeds, lawyers of today
will recognize, in germ, the standard provisions of our
own conveyancing practice. In this deed, for example,
are mentioned the description of premises, the total area,
the parties’ names, the price, the recital of price received,
the kind of title conveyed: 3

[Deed of a Storehouse .] "A 12-reed storehouse, a finished house
having a built-in threshold, a covered house with a door having a
firm bolt, of the bright storehouse of Ezida; on the upper north side
adjoining the storehouse of Bel-epush, son of Apia, son of Mubanni;
on the lower south side adjoining the storehouse of Etillu, son of
Marduk-abishu ; on the upper west side along the Tarrabshu road;
on the lower eastern side adjoining the storehouse of Nabu-iddina,
son of Arkat-Damqu. Total 12 reeds is the measurement of that
storehouse.

“With Bel-uballit, son of Am&lai, the riqqu of Marduk, Marduk-
kudurri-usur, son of Irani-Marduk, the Tu officer of the house of
Marduk, according to 3 minas, 10 shekels of silver for the half of the
field, 15% shekels, and 2 gerahs of silver and 5 kors of dates which
were thrown in, he fixed as his full price. Total 3 minas, 10 shekels
of silver and 5 kors of dates, the full price of his storehouse, Bel-

[ 63 ]

J. Conveyancing

uballit, son of Apia, I lie ri<|(|ii officer of Marduk, received from
Marduk-kudurri-usur, son of Irani-Marduk, the Tu officer of the
house of Marduk. The buyer has a fee simple, there shall be no
recourse. They shall not return and complain to one another/ ’

Some of these deeds were elaborate in* their terms, and
required tablets larger than the ordinary ones. 6 For ex-
ample, in the deed here shown (about B. C. 300) the dis-
tinction between a quitclaim-deed and a warranty-deed
had been already devised; this document ends with a
clause which not only warrants the title and engages to
pay a multiple penalty for a breach of the warranty, but
brings in a third person as surety for the grantor’s per-
formance : b

[Warranty Deed,] “The money, namely, 6 shekels, the full
price of said estate, Anu-belzer, received from la; he has been paid.
If a claim is established against said estate, Anu-belzer the seller of
the estate, and Anu-apaliddannu his brother, sons of Anu-ab-usur,
shall make good twelve fold, and shall pay to la for future time.
They bear responsibility for one another for the guaranty of said
estate to la, for future time. That estate belongs to la the daughter
of Nana-iddin, the wife of Ribat-Anu, the son of Labashi, the
builder, for future time,”

But, besides the deed itself, a stone landmark or record
is frequently found. The stone was set up on the plot
of land, and on the stone was inscribed the description of
the plot, the names of grantor and grantee, and a warning
against adverse claims. This record-stone was not itself
the source of title; but its precise relation to the original
deed has not yet been clearly ascertained. Here is an

[051

J. Conv(\v<i tiring

example from about B. (\ MOO; 7 it reads thus, in con-
densed translation: 1 '

[. Boundary-Stone .] “This stone is named Perpetual Fixer of
Landmark. One acre of corn-land, rated at 5 bins of seed, lying
along the Baddar Canal and Khanbi estate, bounded by Khanbi
estate on the north, by Imbiati estate on the south, by Khanbi
estate on the west, and by the canal bank on the east, bought from
Amel Enlil by Marduk-nasir and surveyed by Shapiku, for the price
of 1 chariot value 100 shekels silver, 1 western ass value 30 shekels
silver, 2 saddles value 50 shekels silver, 1 ox value 30 shekels silver

[etc., etc.] If any agent or official of the said Khanbi

estate shall lay claim to or take this land or shall wrongfully reclaim
it or transfer it to any other party , or shall dispute this grant from
the king, or shall send any fool or blind man or ignorant person to
remove or destroy or hide this landmark, may the great gods curse
him with incurable evil. May Shamash judge of heaven smite his
countenance. May his posterity perish among the people. This
stone is named Perpetual Fixer of Landmark.”

These Mesopotamian documents range over every
variety of legal transaction, — deed, lease, loan, sale, de-
posit, bill of lading, adoption, partition, agency, partner-
ship, marriage-contract, and other familiar types. Here,
for example, is a marriage-settlement, about B. C. 600,
providing carefully in three contingencies for descent of
the property as between the children of the first and the
second wife : d

[Marriage-Settlement.] “In the second year of Nabopolassar,
king of Babylon, spoke Nabu-zer-kit-lishir, son of Kudurru, son of
as follows: ‘I have no child, [though I have a wife]; I

[67 j

WSokw- ir-

LX8f[ ££

yus**

11. 7 — Stone Landmark Pillar, B. C. 1100

The stone bears the description of the plot, the names of grantor
and grantee, and a warning against adverse claims

\ 68 ]

4. Commercial Instruments

wish a child; Kulla, thy daughter, give me as wife.’ Bcl-ikisha
hearkened to Nabu-zer-kit-lishir, and Kulla, his daughter, a virgin,
he gave him in marriage. In the day that Esagila-banata, his first
wife, shall bear a child, two thirds of the estate shall be for her. In
the day that Kulla shall bear a child one third of the estate of Nabu-
zer-kit-lishir shall be for her. In the day that Esagila-banata
childless dies, while Kulla has children, the entire estate of Nabu-
zer-kit-lishir, in city and country, whatever there is, shall be for
Kulla and her children.

“Witnesses: Asharidu,son of Piru,son of Shanishishu, Marduk-
zer-ibni, son of Sukhaa. Document scribe: Mushezib-Marduk,
son of Raba-sa-Addu. Babylon, month of Iyyar, fourteenth day,
second year of Nabopolassar, king of Babylon.”

4. The most advanced ideas in commercial law had
already been reached in Mesopotamian transactions.
Most remarkably, we find, as early as King Hammurabi's
period, a promissory note payable to bearer, dated about
B. C. 2100: it is the oldest negotiable instrument in the
world, now known to us: e

[Note Payable to Bearer .] “5 shekels of silver, at the usual rate

of interest, loaned by the Temple of Shamash and by I. Company,
to Idin and his wife, are payable with interest on sight of the payors
at the market-place to the bearer of this instrument.”

And yet this fertile idea of transferability to bearer
does not appear in European commercial law until the late
middle ages.

Banking in Babylonia was highly developed. In
recent years have been unearthed the records of one of

[ 69 ]

/ [. Mesopotamian Legal System

the greatest banking-houses in history, the house of
Yegibi (or Jacob) and Sons, extending continuously
through four successive centuries from B. C. 700 to 300;
and their records show that the use of instruments pay-
able to order was well known; as in the following in-
strument dating about B. C. 500 : f

[Paper Payable to Order.] “3 gold minae, in specie, are receiv-
able by B. from M. per note. Upon B’s order, N. has collected
from M. the amount with interest due under this note. N. has
surrendered to M. the note calling for 3 gold minae receivable by
B. from M.”

Naturally, in so active and mature a commercial
world, all varieties of agency, brokerage, and partnership
(though not the share-corporation) are found represented
in the recorded transactions. A few selections from the
field of partnership will illustrate the wide range of typical
instruments. The celebrated banking firm of Jacob (or,
Yegibi), above-mentioned, through successive genera-
tions, figures in many of these partnership ventures,
placing its capital with small undertakers for an agreed
share of the profits. First we may look at a partnership
undertaking from the reign of Darius: 8

[. Partnership Contract :] “50 bushels of dates, belonging to

Marduk-nasir-aplu, son of Itti-marduk-balatu, son of Igibi, and 50
bushels of dates, belonging to Bil-ikisha, son of Labashi, son of

have been put in together as partnership capital.

Whatever profit, in town and country, shall be made on these 100

[ 70 ]

4 . Commercial Instruments

bushels of dales shall Ik* sham I. The collage at Borsippa located
adjacent to the lot of ...... ., foreman of [the first partner]

Marduk-nasir-aplu and his brother, has been assigned to [the
second partner] Bil-ikisha, at a yearly, rental of ^ mina of money
and one calf; the said Bil-ikisha to have possession of it for one
year, and the rental to be paid out of the [first partner's] capital.
The tools which [the first partner] Marduk-nasir-aplu will deliver to
[the second partner] Bil-ikisha, he will deliver back at the end of the
year, and he will also pay the taxes. Each party has a counter-
part of this instrument. The south building is in possession of
[the first partner] Marduk-nasir-aplu."

When the partnership-venture was completed, an
instrument was signed, reciting an accounting, acknowl-
edging the division of the profits, and mutually releasing
from all claims; the following document, from the time of
Nebuchadrezzar (about B. C. 600) is typical of scores: 11

[Partnership Release :] “As to the business-capital used in
partnership between Nabu-kin-aplu and his son Nabu-bil-shunu,

and Shula son of Zir-ukin, and Mushizib-bil,

official, from the 8th year of Nabu-aplu-usur, king of Babylon, to the
18th year of Nabu-kudur-usur, king of Babylon: An accounting
has been had by the parties on oath in the presence of the judges,
and it was agreed that 50 shekels gold are to be received by [the
first-named two parties] Nabu-bil-shunu and his father Nabu-kin-
aplu. No recourse or claim will be made. The partnership-venture
is dissolved, and each party will go his own way. In the name of

the gods, each party has made oath, and the

accounting is finished. The original instruments executed by the
parties have been cancelled."

But the Babylonian partnerships, like other such
ventures elsewhere, were not always peacefully settled by

[ 71 ]

1 1. Mesopotamian Legal System

mutual accord; for occasionally a disputed account led to
litigation. The following incomplete record (dating more
than 1500 years before the above two) begins with a
formal oath of the defendant to his story of the facts; and
this oath is accepted by the court as decisory; the suit
had been brought by the sons of one deceased partner
against the son and the brother of the other deceased
partner, and claimed an accounting: 1

[Partnership Lawsuit:] 11 . . . . . Afterwards [the defendant]
Varad-shin, son of Sin-nasir, mounting the altar and touching the
banner of the god Shamash, made oath against [the plaintiffs] Sin-
ikisham and his brother, sons of Ubar-shamash (the brother of
[the defendant’s] father having already made oath), as follows:

4 “With the moneys appropriated from the partnership fund by
my father Sin-nasir and [the plaintiffs’ father] Ubar-shamash, they
transacted business, after making a trading journey. Then, after
the death of the plaintiffs’ father Ubar-shamash, they came to my
father Sin-nasir [and asked for an accounting], whereon he took from
his own chest the purse of gold containing the money-proceeds of
the venture, and restored it to the partnership-fund. It was not
with any moneys from the partnership purse that my father bought
any land or house; the house [in question] was bought with his own
private assets. No other partnership moneys than the above-named
in the partnership purse remained in the hands of my father Sin-
nasir, nor came to my hands. Whatever private moneys were
left in my father’s house [on his death] were applied by me to
pay his own outstanding debts.’

“Proceedings had in the Shamash Temple before six judges.
After oaths taken, each party executed a docu-
ment releasing all further claim.”

[ 72 ]

5 . J it die ia I Proceedings

. r >. There are copious documents showing a judicial
system in full operation, with professional judges, pro-
fessional clerks, and notaries, employing various standard
forms of writs and other legal process. Among other dis-
coveries is this judgment, dating some 2000 years B. C.,»
in a suit over a boundary- wall ; in this record the title is
awarded to one party, and the opponent is forbidden
thereafter to dispute the title:’

[ Judgment in a Land- Action.] “Action claiming a wall, brought
by Ibkusin, son of Sharrum-Shamash, against Waradsin. The men
appointed to report inspected the wall. The distance from the wall
of Nurgir to the wall of Waradsin being Yi rod 2 cubits [etc., etc.],
the wall was proclaimed to be the property of Waradsin, in the
court of Sippar at Sharrum. Forever hereafter, Ibkusin shall make
no claim to this wall of Waradsin. The spirits of the gods Shamash,
Aja, Marduk, and of the king Samsuiluna, are invoked. . . . [Follow
the names of six witnesses to this document.]”

The king was the fountain of justice, receiving the
law from divine guidance. But under King Hammurabi
(about B. C. 2100) his deputized administration of justice
passed from the hands of the royal priest-class, in the
temples, to a body of royal secular judges, sitting com-
monly at the great gate and market-place of the city (as of
yore also in Hebrew annals). This change was perhaps the
consequence of the union of North and South Babylonia
and the enactment of a common code for the united king-
dom. The king continued to do justice either in person

[re]

5. Judicial Proceedings

(in some* classes of cases) or through his prime minister
and chief justiciary, 0 on some principle of appeal.

lint helow him was a system of courts. In Babylon is
found a chief magistrate (sometimes sitting with the chief
magistrate of another metropolis, when the parties were
of diverse domicile), and occasionally the governor of
Babylon acts as judge. In the towns and villages, the
mayor, presiding over a bench of elders, dispensed local
justice. Clerks of courts recorded on the clay tablets a
concise minute of the proceedings.

In the following record (dating about B. C. 2060) of a
lawsuit over a will, it would seem that the instruments at
issue, literally “contracts of heirship’’, were in law rather
what we should call “testaments”, so that the later in-
strument revoked and annulled the earlier one: k

[Lawsuit over a Will:] “An estate of 1 acre 10 rods of arable
land at Bit-agargina adjacent to Ibku-adad, and 1-12 acre 25 rods
of arable land, in the fields of the goddess Gula, adjacent to Iluni,

were disposed of [to defendants] by Apil-ilishu, son of

who claimed title under a contract of heirship of a certain date;
part of the land being sold for money, and part exchanged. [The
plaintiff] Shumum-ilishi (son of Nannar-idinnam), eldest brother
[of the above grantor], who claimed the land under an heirship-
contract of earlier date, producing the contract, then entered

complaint before the judges against Ninib-mushalim, the

son of Nannar-tum, who had bought for money from [the above-
named claimant] Apil-ilishu the plot of land at Bit-agargina, and
against Sag-ninbizu, son of Ui-avele, who had received by exchange
the plot of land at the Gula temple.

[ 76 ]

/ /. Mesopotamian Legal System ■ \

'‘After the judges had verified the earlier heirship-contract, the
defendant [grantee] Ninib-mushalim thus pleaded in person:
‘After the execution of this earlier heirship-contract produced by
you the plaintiff, a later heirship-contract was executed [by the
ancestor] to [the above-named] Apil-ilishu [my grantor], for the
plots of land at Bit-agargina and at the Gula temple. Witnesses to
this transaction are present; summon them and hear their testimony.’
Thus he pleaded.

“Thereupon came forward the witnesses to the later contract,
namely, Sag-ninibizu, son of Ili-avele, Su-enkiga, son of Nannar-
adab, Ellitum, son of Ninib-medu, and Idin-ishtar, son of Lugal-
egen. After the judges had heard their testimony to the later
heirship-contract, the judges ordered them to make oath before
[the god] Shamash, exalted source of all Light.

“Thereupon [the plaintiff] Shumum-ilishi voluntarily an-
nounced that he would waive these witnesses’ performance of the
oath before Shamash, exalted source of all Light. And because he
waived the performance of the oath before Shamash, exalted source
of all Light, then [the defendant] by consent of [the plaintiff]
Shumum-ilishi, paid over to the said Shumum-ilishi shekels
[in settlement of the case].

“Hereafter no claim will be made by Shumum-ilishi against
Ninib-mushalim for the land at Bit-agargina, nor against Sag-
ninbizu for the land at the Gula temple. Nor will Ninib-mushalim
make claim against Shumum-ilishi for the 1 }/% silver shekels,

“Oath to this was made by both before the King.

“Eight witnesses [with their signatures].

“On the 28th day of the month Elulum in the year in which
King Samsu-iluna set up the two golden thrones for the shrines of
Marduk and Zarpanitum.”

In any of the surviving European systems, the lapse

[ 76 ]

5. Judicial Proceedings

ol a thousand years has given rise to successive new phases
o! thought, and thus lias witnessed radical changes both
in the procedural methods and in the style of the records.
But in Mesopotamian annals, strangely enough, it was
otherwise. After reaching a mature development by
B. C. 2500 or earlier, the system exhibits little noticeable
change. From the time of Hammurabi and his immedi-
ate predecessors, to the period of Darius and his immedi-
ate successors, nearly two thousand years, both method
and style, as revealed in the records, seem to have re-
mained virtually static.

The fullest extant record showing the normal course of
proceedings in a lawsuit is one dating from about B. C.
2000, in the city of Babylon and the reign of Ammi-ditana;
the plaintiff first apparently claims title to a piece of land;
then the defendant sets up the execution of the deed;
then the plaintiff rests on the allegation of non-payment
of price, then the defendant joins issue on this allegation;
and the court finds for the defendant, and requires the
plaintiff to execute a release: 1

[Action for non-payment of sale-price of land, by

Ilusha-negal vs. Addi-liblut; opening lines broken off] 1 rod of
improved house-lot [being land], which Ilusha-negal, [the plaintiff,]
priestess, daughter of Ea-ellazu, had bought from Belizunu, priestess
of Zamma, daughter of •....., in the year when King
bi-eshuh being 1 rod of house-lot adjacent on

f 771

//. Mesopotamian Lena/ System

one side to the house of Ili-ikisha son of Idin-shamash, and on the
other side to the house of Ili-ikisha son of Itti-marduk-balatu, and
on the front to the house of Ili-ikisha son of Idin-shamash, and on
the rear to the house of Nabi-ilishu.

[Defendant Pleads .] " ‘From the priestess Ilusha-negal daughter

of Ea-ellazu, for 15 silver shekels, my wife Belizunu [a different per-
son from the above-named B.], priestess of Marduk, and daughter

of . , did indeed buy the lot in the year when King

Ammi-ditana , and I received the deeds duly executed

by seal. And I have as witness Ili-ikisha above-named, possessor
by inheritance of the two lots adjacent, who affixed his seal. But
now the priestess Ilishu-negal, daughter of Ea-ellazu, is claiming
this 1 rod of house-lot, although the executed deed bears her seal/

[. Plaintiff Pleads .] "After he had thus pleaded, the priestess
Ilusha-negal, daughter of Ea-ellazu, answered thus in person:
'When the 1 rod of improved house-lot, adjacent to 2 rods of house-
lot, which I had bought from Belizunu, priestess of Zamama, was
sold by me to Belizunu, [the other B.] priestess of Marduk, wife of
defendant Addi-liblut, for 15 silver shekels, she did not pay me the
15 silver shekels.' Thus the plaintiff replied.

[Evidence.] "Then the judges called upon [the plaintiff] Ilusha-
negal to produce either witnesses that the [defendant] priestess
Belizunu had not paid the money, or an instrument of debt for the
unpaid price, but she did not produce them, for none came. Then
[the defendant] Addi-liblut produced the executed deed for the 1
rod of house-lot, and the judges read it, and called for the testimony
of the witnesses signing the executed deed, and they in the presence
of the judges stated that the 15 shekels, the price for the 1 rod of
house-lot, had been received by [the plaintiff] Ilusha-negal, and that
she had acknowledged receipt.

[Judgment.] "After the judges had examined the facts, they
imposed a fine on [the plaintiff] the priestess Ilusha-negal, daughter

[ 78 ]

5 . Judicial Proceed in ns

ol bemuse six- had denied her authentic seal; and directed

(hat she sign t lie following release of claim:

[Release.] “‘Hereafter the 1 rod of improved house-lot, ad-
jacent to the house of Ili-ikisha son of Idin-shamash and to the
house of Ili-ikisha son of Itti-marduk-balatu and having at
the front the house of Ili-ikisha son of Idin-shamash and at
the rear the house of Nabi-ilishu, is the purchased property of
Belizunu priestess of Marduk, wife of Addi-liblut; and Ilusha-negal,
her children, her brother, and her other kin will make no claim
against Belizunu and her husband Addi-liblut.’

[Certificate.] “This they swore to by [the god] Marduk and the
king Ammi-ditana, in the presence of . . . [here follow the names and
titles of eight judges and a chief judge].

“Certified by Gimil-marduk, clerk of court, and Belsunu, as-
sistant.

[Sea/s.] . . . [here follow eleven seals, first the plaintiff, then
seven of the Judges, then two other persons, then the plaintiff
again.]”

From the later period, about B. C. 550, we have a
record of a lawsuit (perhaps an appeal) which raises
points of law readily appreciable under our own modern
law, — the case of Bunanitu vs. Akabu-ilu.i# A widow
sues her brother-in-law. The widow and her husband,
having no children, had adopted a boy; afterwards they
bought land, paying for it in part with the wife’s dowry.
On the husband’s death, the husband’s brother claimed
the estate, on the ground (apparently) that the husband
had died without male issue. The widow maintained that
the land belonged to the adopted child and herself. The

[ 79 ]

II. 10 — Lawsuit of Bunanitu vs. Akabu-Ilu, about B. C. 630
A widow sues her brother-in-law for land claimed
by inheritance and obtains judgment

[ 80 ]

5. Judic'uil I’rorccdinfrs

court, consisting of si* judge's, derided in her favor. The
record of this suit of Uunanit u vs. Akalm-ilu runs thus : 111

[Lawsuit of Bunanitu v. Akabu-ilu.] “Bunanitu, daughter of
llariza, comes to the judges of Nabonidus, king of Babylon, and
says:.

[. Plaintiff's Pleading .] “ ‘Bin-Addu-natan, son of Nikbata, had

me to wife, receiving 3 silver mana as dowry, and I bore to him one
daughter. I and Bin-Addu-natan, my husband, traded with the
money of my dowry, and then with silver mana, including 2^
silver mana borrowed from Iddin-Marduk, we bought 8 rods of
land, and a ruined house, in a large estate in Borsippa. We made
this purchase jointly, in the fourth year of Nabonidus, king of
Babylon. Now my dowry had been in the hands of Bin-Addu-
natan, my husband. But I asked for it, and Bin-Addu-natan, in
the kindness of his heart, deeded and entrusted to me for future
maintenance the 8 rods of land and that house in Borsippa. Then
in the fifth year of Nabonidus, king of Babylon, I and Bin-Addu-
natan, my husband, adopted Bin-Addu-amara as our son, and
executed a declaration of adoption and provided that the dowry
of my daughter Nubta, when she would marry the adopted son, was
to be 2 mana 10 shekels of silver and the furniture of a house.
Fate then took my husband. On account of this, [his brother],
Akabu-ilu, son of my father-in-law, now claims to inherit the house
and everything which my husband had deeded and entrusted to me,
and also claims the slave Nabu-nur-ili whom we had bought by the
agent, Nabu-ahi-iddin, for money. I have brought the case to you
for judgment.’

[Judgment,] “The Judges heard the parties’ statements, and
examined the tablets and documents which Bunanitu produced in
court. They held that Akabu-ilu [the brother] had no title to the
house in Borsippa, which had been entrusted to [the wife] Bunanitu
in place of her dowry; nor to the slave Nabu-nur-ili, whom she and

[ 81 ]

//. Mesopotamian Ia' gal System

her husband had bought for silver; nor lo any properly of [his
brother] Bin-Addu-natan. [The widow] Bunanilu and the son
Bin-Addu-amara, pursuant to the terms of their tablets, are to
possess them. Iddin-Marduk is to be repaid the 2 }/% silver mana
which he had loaned as part of the purchase price of that house, and
to discharge his claim. Then [the widow] Bunanitu is to be repaid
the 33^2 mana, her dowry. [The daughter] Nubta, besides her own
property, is to have the slave Nabu-nur-ili, according to the agree-
ment of her father.

“ Judgment entered accordingly.”

Of criminal trials (as we call them ; for our sharp dis-
tinction between criminal and civil cases is not found in
the Oriental systems, nor in the early stages of any
system) no satisfactory records have yet been deciphered.
But interesting sidelights on criminal justice are occasion-
ally revealed in the copious annals of lay literature . 11
The human aspect of the processes of justice in domestic
contentions may be seen in this petition from an accused
person, in which he beseeches the king’s personal atten-
tion to right his wrongs and vindicate his reputation : 11

[Appeal of an Accused.] “To the King my Lord thy servant
Nebo-Balatzu-ikbi sends greeting. May the gods Nebo and
Marduk to the King my Lord be propitious! and may the god
who is the head of heaven and earth prolong thy life!

"Have I not once and twice besought the King my Lord? Yet
no one has sent to me news from Babylonia. Is the countenance of
the King turned away from me? and have I committed some
crime against the King my Lord? No! I have not committed any
crime against the King my Lord.

[ 82 ]

V w

■ L :1J .1' dAL.t

^ Up "v «/*,, .

r f

II. 11 — Audience Hall at Nineveh
“A certain man, my accuser, entered the palace boldly; a criminal
charge against me he raised; fetters on my hands he placed”

5 . Judicial Proceedings

“When (rust worthy witnesses had assembled and I had de-
clared my fidelity to the Kin)* before a public notary, a certain man,
my -accuser, entered the palace boldly; a criminal charge against me
he raised ; fetters on my hands he placed, and said: 'In the presence
of all these people who are here assembled, as prisoner of my Lord
the King, I arrest youf All that day I lay flat on my face upon my
bed. The soldiers who passed by my bed, out of ill-will, none gave
me food for my mouth ; hunger and emptiness fell upon me. When
evening came, I rose up, and I muffled my fetters, and I passed by
in front of the guard whom the King my Lord had set in that place
to guard it. How I was liberated I will now tell the King. Some
soldiers, strangers to me, came in thither, who broke off from me
the King’s fetters, and with idle words spoke against the King (the
King will understand me). For two days, for money, to sustain
my life they brought me of their food, for my portion, and for my
nourishment, and they spoke words of disrespect against the King
my Lord, that are not decorous that the King my Lord should know
them ; their full speech I conceal, for it were not meet for the eyes of
the King. (Sarludaru will tell me the will of the King.) More-
over, a certain villain of the land of Sumir, who never broke my
bread, this man seduced the daughter of Babilai, who is the son of
one of the Priests of the Sun. To the King my Lord I wrote word
of the crime, and one at a time, the magistrate and the prosecuting
officer took it by turns to adjudicate, for the King on purpose had
mingled them so, to judge my household; they sent writings in
multitudes, letter after letter.

"When Sarludaru to the office of Exchequer Judge had been
appointed, the prosecuting officer demanded judgment, and having
thrown the men of my household into prison, he gave them to
Sarludaru. When he came to judge, he said: 'Fear not, my man!
Needlessly thou fearest.’ And I till the time of the evening meal
continued talking with him. Meanwhile, the girl had been carried
off ; but how she left the house I saw not; I heard not; and I knew not

[S3]

II. Mesopotamian Legal System

who carried her off, not in the least! for in the crowd of servants of
the King my Lord, with whom she had been talking, she had re-
mained behind. O Marduk! whoever has concealed her flight, I
have as yet obtained no news of him, but, O Lord of Kings ! I will
urge with haste the search for her present dwelling-place. The
prosecuting officer has annuled the criminal accusation ; but that the
King [himself] should judge all my family from my heart I desire!”

6. The legislation of Babylonia has already been
found, in large part. One of the earliest peoples occupy-
ing Babylonia was the Sumerians, a non-Semitic people;
and a few years ago an American scholar discovered and
deciphered a fragment of one of their primitive enact-
ments. 1 * It is inscribed on a clay tablet feet square,
and dates from possibly 2400 years B. C. The characters
of this inscription have therefore the solemn impressive-
ness of being the oldest code- text in the world yet dis-
covered.

Its added interest is that it happens to contain,
among its seven paragraphs, the rule which explains the
parable of the Prodigal Son, told by Jesus of Nazareth to a
Semitic people more than two thousand years later:
“And the younger son said to his father, ‘Father, give me
the portion of goods that falleth to me’. And the father
divided unto them his estate. And not many days after,
the younger son gathered all together, and took his
journey into a foreign land.” Now this act of partition,
as the Sumerian Code shows, was no more than the lawful

[ 84 ]

II. Mesopotamian Legal System

proceeding of emancipation, as a comparison of its text
will illustrate : 0

Sumerian Code , par . 4

"If a son says to his father
and his mother, Thou art not
my father nor my mother’, he
shall abandon the house, field,
plantation, and other property,
but his own full portion shall be
delivered to him by his father.

His father and his mother shall
say to him, Thou art not our
son’; and he shall go out from
the place.”

For, in the Sumerian Code, a son may say to his
parents, “Thou art no longer my father nor my mother”,
and the father must then deliver to him his portion of the
estate. This made the son independent, but forever cut
him off from further share in the home. In the parable,
indeed, his father ultimately bestows on him the fatted
calf. And the profound moral there is the subordination
of strict legal right to the justice of the heart.

But the greatest treasure of Babylonian law is the
Code of Hammurabi. ^ In this system, as in the Egyp-
tian and the Hebrew, the Law is conceived as delivered to
the King from a Divine hand. The sun-god Shamash,
seated on the right, is the god of Law, whose children are
Justice and Right. And the king, Hammurabi, receiving

Parable of the Prodigal Son
C Luke , XV , 11)

"And the younger son said
to his father, ‘Father, give me
the portion of goods that falleth
to me’. And the father divided
unto them his estate. And not
many days after, the younger
son gathered all together and
took his journey into a far
country.”

[ 86 ]

II. 13 — Pillar-Code of Hammurabi
It_is 8 feet high, and contains some 300 sections; a
portion at the base is missing

[S7]

I

II. Mesopotamian Legal System

the law from Shamash, declares that he the king has kept
the strong from oppressing the weak, and has given safety
to the orphan and the widow; and so, to do justice in de-
ciding lawsuits, the king has inscribed the Law publicly,
where all may come and read it, at the temple-gate of the
Sun-God Shamash, where justice is dispensed,

Such is the epilogue to the famous Pillar-Code of King
Hammurabi, discovered in 1902, It is eight feet high,
and contains some three hundred sections. It dates about
B. C. 2100, The original is in the Louvre Museum; a
facsimile can be seen in Northwestern University School
of Law. It is the earliest national code in the world whose
(almost) full text we know, being some 1500 years older
than the Hebrew Code and the Hindu Code of Manu. Its
provisions have been transcribed in cuneiform type, 14 and
translated into several modern languages. They range
over nearly the whole scope of law, — crime, family, proper-
ty, commerce.

These following passages will serve to illustrate their
style : p

[Hammurabi Code.} “If a man have borrowed money of a
merchant, and have given (as security) to the merchant a field to be
planted with grain and sesame, and have said to him, ‘Cultivate the
field and reap and take for thyself the grain and sesame which is in
the field,’ and if the cultivator have raised grain and sesame in the
field, at the time of reaping the owner of the field shall receive the

[ 88 ]

seat.-ae-tc-

asissaEatB

siSSSis&a

II. 14— Transcription of a Part of the Pillar-Code of Hammurabi

\ 89 ]

//. Mesopotamian Legal System

grain and sesame which is in the field, and he shall give to the mer-
chant grain for the loan which he had received and for the interest
and for the maintenance of the cultivator.

“If. he give (as security) a field planted with grain, or a field
planted with sesame, the owner of the field shall receive the grain
or the sesame which is in the field, and he shall return the loan and
its interest to the merchant.

“If he have not money to return, he shall give to the merchant
grain or sesame at their market value as fixed by the king, for the
loan and its interest, which he has obtained from the merchant

“If a man have borrowed money from a merchant, and his
creditor had warned him to pay; and he had nought to give, and he
had given over his garden already cultivated, and then had said,
'All the dates, which are produced in this garden, take for thy
money,' that merchant shall not assent. The dates, which are
produced in the garden, only the possessor of the garden may take;
then shall he pay the merchant the money, including the interest, in
accordance with his account, and the remaining dates, which are
produced in the garden, shall the possessor of the garden take . . . . ”

For tracing the evolution of law, the value of this
Babylonian Code is incalculable; because about 1920 the
discovery of another partial code (the Code of Assur),
dating from the later times of Assyrian domination in
Mesopotamia, about a thousand years after Hammurabi,
enables us now for the first time to compare on a large
scale different epochs of Semitic law. And since the full
legal records of the Hebrews, another Semitic people,
though more primitive, date some 500 years still later, the
parallel comparison of institutions in these three adjacent

[ 90 ]

6 . Legislation

l>eoi>1cs is bound To illuminate the problems of legal
evolution. For example, in Egypt, as we saw, the wife
might by contract reserve the sole right of divorce; but
in these three Semitic codes, only the husband could
divorce; moreover, by the Code of Hammurabi, in the
passage here shown, the husband on divorce is bound to
restore to the wife her dowry ; yet, by the Code of Assur, he
may give her only as much as he pleases; while the He-
brew law says nothing of any payment by the husband : q

Code of Hammurabi
Sect . 138

“If a man would
put away his wife
who has not borne
him children, he shall
give her money to the
amount of her mar-
riage settlement, and
he shall make good to
her the dowry which
she brought from her
father's house, and
then he may put her
away."

Code of Assur
Col. /, Sect . 38
“If a man puts
away his wife, he
shall give her some-
thing if he wishes to;
if he does not wish
to, he shall not give
her anything; she
shall go empty out
of his house.”

Deuteronomy
Ch. XXIV, Verse 1
“W hen a man
hath taken a wife and
married her, and it
come to pass that she
find no favor in his
eyes, because he hath
found some unclean-
ness in her, then let
him write her a bill of
divorcement and give
it in her hand, and
send her out of his
house.”

7. The glories of the Babylonian kingdom made it
long pre-eminent among neighboring peoples; the famous
Hanging Gardens of Babylon^ were the theme of amazed
contemporary visitors, whose reports are no longer deemed
incredible. But the very riches of Babylon marked it as an

[ 91 ]

//. Mesopotamian Legal System

object of prize for the young sturdy nations on the east
now surging down from the mountains towards Meso-
potamia. And it came to pass, some 1500 years after
Hammurabi’s day, about B. C. 550, when the Hebrew
people were now captive in Babylon (the great judge
Daniel among them), that the Babylonian King, Na-
bunahid (as the Babylonian records call him), or Bel-
shazzar (as the book of Daniel names him), gave a feast,
and the mysterious hand came and wrote upon the wall.™
And Belshazzar’s thoughts were troubled, and his knees
smote one against another, and he cried aloud to his wise
men; but they could not interpret the writing; and then
was Daniel brought in to read it. The fourth word of the
handwriting on the wall, interpreted by Daniel at Bel-
shazzar’s Feast, was this: “Peres: Thy kingdom is di-

vided, and given to the Medes and Persians.” And “in
that night”, says the chronicle, “was Belshazzar the king
of the Chaldeans slain.”

Belshazzar was the last native ruler of Babylonia. He
lost his empire to Cyrus, king of the new Persian nation,
Aryans by race, coming from the east. Other new in-
vading races followed; and by a century before Christ,
Under the Greek conquerors, the Babylonian legal system
was supplanted. Hammurabi’s pillar-code, and the vast

rasi

II. 16 — Daniel Interpreting the Handwriting on
the Wall for Belshazzar

Belshazzar gave a feast, and the mysterious hand came and wrote
upon the wall. . . . The wise men could not interpret the writ-
ing, and then was Daniel brought in to read it. . . And in

that night was Belshazzar the king of the Chaldeans slain”

7 . of Hiihylon

storehouses of legal, records, were gradually buried under
the rubble of ages; until, some 2000 years still later, an-
other Aryan, this time coming from the west, a French
explorer, DeMorgan, chanced upon the pillar-code and
bore it away in triumph to the Louvre Museum, — the
greatest prize of the century for the revelation of legal
history.

[ 93 ]

II. Mesopotamian Legal System

Sources of Illustrations

1. Map of Mesopotamia . From F. W. Putzger , “Historischer Schul -Atlas”,
16th ed., plate 3 (Leipzig, Velhagen & Klasing, 1890).

2. Temple Tower of Babylon. From the drawing in Perrot and Chipiez, “His-
tory of Art in Chaldea and Assyria”, p. 370 (Chapman & Hall, London,
1884).

3. Early Pictograph . From the illustration in Clay t cited infra.

4, 5. Deed of Storehouse . From the facsimile in Albert T. Clay t “Legal and Com-
mercial Transactions dated in the Assyrian, Neo- Babylonian, and Persian
Periods”, plate IV, text 3, translation 9 (University of Pennsylvania, De-
partment of Archaeology, 1908).

6. Warranty-Deed . From the facsimile in Albert T. Clay , “Babylonian Records
in the Library of J, Pierpont Morgan”, plate I, text 23, translation 2 (Yale
University Press, 1920).

7. Boundary Stone. From the facsimile in L. W. King , “Babylonian Boundary
Stones and Memorial Tablets in the British Museum”, plate LIII, p. 37,
No. 90841 (British Museum, 1912).

8. Judicial Decision. From the facsimile in Hermann Ranke , “Babylonian
Expedition of the University of Pennsylvania”, Series A, Cuneiform Texts,
vol. VI, part 1, text 60, translation 15 (University of Pennsylvania, 1906).

9. King Sargon. From the drawing in Perrot and Chipiez (cited supra), p. 96.

10. Bunanitu v. Akabu-ilu. From a photograph, by R. B. Fleming , of the
original tablets in the British Museum, numbered 33945, 41459.

11. Audience Hall at Nineveh . From the drawing in “Bilder-Atlas”, vol. VI,
plate ii, No. 1 (F. A. Brockhaus, Leipzig, 1875).

12. Sumerian Code. From the facsimile in Albert T . Clay , “Yale Oriental
Series, Babylonian Texts”, vol. I, plate LI, p. 18 (Yale University Press,
1915).

13. Pillar- Code of Hammurabi. From the facsimile cast, in the Law School of
Northwestern University, of the original pillar in the Louvre Museum.

14. Transcription of Code. From the drawing in D. H. Muller , “Die Gesetze
Hammurabis”, frontispiece (Vienna, Holder, 1903).

15. Hanging Gardens of Babylon. From the painting by Thomas Moran , as
reproduced in H. H. Bancroft , “The Achievements of Civilization; the Book
of Wealth” (New York, Bancroft Co., 1896-1900, 10 vols.; ed. Cygne Noir
in the Newberry Library, Chicago).

16. The Handwriting on the Wall . From a reproduction of the painting by
J . Martin .

Sources and References

Sources of Documents Quoted in Text

a. Deed of a Warehouse. From the translation in Clay , “Legal and Com-
mercial Transactions”, cited supra .

b . Warranty-Deed. From the translation in Clay , “Babylonian Records”,
cited supra.

c. Stone Landmark. From the translation in King , “Babylonian Boundary
Stones”, cited supra.

d. Marriage-Settlement. From the translation in Robert W. Rogers , “Cunei-
form Parallels to the Old Testament”, p. 394, text III (Eaton & Mains,
New York, 1912).

e. Note Payable to Bearer. From the German translation in M. Schorr ,
“Urkunden des Altbabylonische Zivil-und Prozessrechts”, No. 58, p. 88
(Leipzig, Hinrichs, 1913).

f. Instrument Payable to Order. From the German translation in J. Kohler
and F. E. Peiser , “Aus dem Babylonischen Rechtsleben”, IV, p. 63 (Leip-
zig, 4 parts, 1890-1898).

g. Partnership Contract. From the German translation in Kohler and Peiser
(cited supra), III, p. 48 (1894).

h. Partnership Release. From the German translation in Kohler and Peiser
(cited supra), II, p. 59 (1891).

i. Partnership Lawsuit. From the German translation in M. Schorr, “Alt-
babylonische Rechtsurkunden aus der Zeit der I. Babylonischen Dynastie”,
III, p. 18, No. 12 (Vienna, Holder, 1910).

j. Judicial Decision. From the translation in Ranke, Babylonian Expedition,
cited supra .

k. Lawsuit Over a Will. From the German translation in Schorr, “Altbabylon-
ische Rechtsurkunden” (cited supra), III, p. 61, No. 53.

l. Action for Price of Land Sold. Revised from the German translation by
M. Schorr, in “Urkunden des Altbabylonischen Zivil-und Prozessrechts”
(Leipzig, Hinrichs, 1913), p. 300, No. 280.

m. Bunanitu v. Akabu-ilu. From the translation by T. Pinches, in “Trans-
actions of the Society of Biblical Archaeology”, VIII, 271.

n. Appeal of an Accused. From the translation by H. F. Talbot , reprinted in
“Records of the Past”, XI, 101 (London, Samuel Bagster, n. d.).

o. Sumerian Code. From the translation in Clay, “Babylonian Texts”, cited
supra .

[94]

[95]

//. Mesopotamian Le gal System

p. Hammurabi Code. From the translation in Rogers , “Cuneiform Parallels,”
p. 414, cited supra. — The stage of evolution represented by these passages is
discussed by the present writer in his essay, “The Pledge-Idea: a Study in
Comparative Legal Ideas” (Harvard Law Rev. X, 321).

q. Code of Assur. From the French translation in V. Scheil , “Recueil deslois
assyriennes” (Paris, Geuthner, 1921).

General References

Wm. R . Harper and Robert F. Harper , “The Laws of Hammurabi” (University
of Chicago Press, 1903).

C. H. W. Johns , “Babylonian and Assyrian Laws, Contracts, and Letters”

(Edinburgh, 1904).

T. Pinches , “Babylonian Legal Documents” (1883).

J. H. Stevenson , “Assyrian and Babylonian Contracts” (Cincinnati, 1902).

A. H. Sayce , “Babylonians and Assyrians: Life and Customs” (London, 1901).

Z. A. Ragozin , “Story of Media, Babylon, Persia,” chap. IX, “The House of
Egibi” (New York, 1888).

D. L. Luckenbill , “Ancient Records of Assyria and Babylonia”, vol. IV,

“Ancient Law and Business” (University of Chicago Press, 1929).

S. A. Cook 9 “The Laws of Moses and the Code of Hammurabi” (London, 1903).

Also the collections, cited supra, of Kohler & Peiser , Clay , and Schorr , and
other collections of documents published for the libraries of the University
of Pennsylvania, Yale University, J. Pierpont Morgan, and the British
Museum.

[ 96 ]

Ill

The Hebrew Legal System

Shifting home of early I lebrews - Five
stages of the legal system.

1. Mosaic Period — The Ten Commandments
—Hebrew and Greek texts — Deuteronomy
— Moses delegates justice to professional
judges — Solomon — Absalom doing justice
at the Gate — Solomon's judgment between
the two mothers.

2. Classic Period — The Sanhedrin — The rabbi
— The Temple— Loss of Hebrew political
independence.

3. Talmudic Period — The Talmud — Develop-
ment of law by precedents — Debates of the
rabbi — Jesus debating in the Temple.

4. Medieval Period — Maimonides — Exchequer
of the Jews — Commercial instruments—
Marriage-contracts.

5. Modern Period — A Hebrew Code — Read-
ing the Torah.

Ill

The Hebrew Legal System

HE early Hebrew civilization was originally
nomadic and pastoral, then agricultural, and
only later commercial. Its home shifted, at
pochs, from Arabia to Egypt, then to Palestine,
then to Babylon, then to Palestine again. i

It represented a much simpler and less advanced stage
than its neighbors and older Semitic relatives, the Mes-
opotamians. But the contiguity of their territories linked
their destinies in tribal struggles, for many centuries.
Both in Egypt and in Babylon the Hebrew tribes so-
journed for long periods as a subject people. About B. C.
2100 the. patriarch Abraham saw King Hammurabi, as an
enemy in battle. Nearly a thousand years later the
leader Moses, with his brother Aaron, appeared in the
court of Pharaoh (perhaps the great king Rameses II,
B. C. 1300), and Aaron, it is recorded, cast down his rod
before Pharaoh and it became a serpent; this was the first
miracle by which Moses hoped to soften Pharaoh’s heart,
and free the Hebrews from their bondage. And it was
some six hundred years still later that the great Hebrew
judge Daniel, when a captive in Babylonia, must often
have looked upon the code-pillar of Hammurabi, which
at that time still stood on the acropolis of Susa.

[ 108 ]

III. Hebrew Legal System

In Daniel’s time, Hebrew legal history was still in its
first stage; for the Hebrew legal system developed in five
well-defined stages:

CHART OF PERIODS OF HEBREW LAW

About
B. C. 1200

* 'Genesis' *

“Exodus”

“Leviticus”

“Numbers”

“Deuteronomy”

B. C. 400

2. Classic Reports of Cases! B. C. 300

Period Commentaries J A. D. 100

3. Talmudic n . /The “Mischna”! A. D. 200

Period geStS \The “Gemara” / A. D. 500

[DISPERSION OF THE HEBREW PEOPLE]

4. Medieval Private Codes\ A. D. 700

Period Commentaries/ A. D. 1500

5. Modern Translations 1 A. D. 1600

Period Printed Editions / A. D. 1900

First came the Mosaic period, to B. C. 300, including
the kings, the prophets, and the judges; then, the classic
period, when the rabbi developed the law; then the

Moses

David

Solomon

L Mosaic Elijah
Period Daniel
Josiah
Ezekiel
Nehemiah
Ezra

Narratives

and

Codes

im]

III. 2 — Moses Breaking the Tables of the Law

The people of Israel had set up a golden calf to worship it, and Moses’ anger waxed hot and
he cast the tables out of his hands and brake them

/. Mostiir Period

Talmud period, when I lie* records were consolidated ; then
the medieval and the modern periods. Strictly as a
system of law, it ended with the second stage, A. D. 100,
at the replacement of Jewish law in Palestine by Roman
rule ; after that, it became mainly local custom, chiefly in
ceremonial and moral rules.

1. In the first, or Mosaic period, comes the Penta-
teuch, or Five Books; and to the summit of Mount Sinai,
in Arabia, the lofty pinnacle five thousand feet high from
the plains below, Moses is said to have gone up to re-
ceive from Jehovah the Two Tables of the Law. On his
first return, bearing the tables writ with the Divine finger,
he found that the people of Israel had been fickle and had
set up a golden calf to worship it, and Moses’ anger waxed
hot and he cast the tables out of his hands and brake
them. 2 But at Moses’ prayer, Jehovah forgave the
people and again wrote the Law upon Two Tables like the
first, and Moses came down again from the mountain, and
his face shone with light so that the people were afraid.

These Ten Commandments, on the two tablets of
stone, were the greatest short moral code ever formulated,
and are still far in advance of Humanity’s and even
Christianity’s daily life:*

[The Ten Commandments .] “I. Thou shalt have none other

gods before me.

[ 105 ]

///. Hebrew Legal System

“II. Thou shalt not make thee any graven image, or any like-
ness of any thing that is in heaven above, or that is in the earth
beneath, or that is in the waters beneath the earth: Thou shalt not
bow down thyself unto them, nor serve them ; for I the Lord thy God
am a jealous God, visiting the iniquity of the fathers upon the
children unto the third and fourth generation of them that hate me,
and showing mercy unto thousands of them that love me, and keep
my commandments.

“III. Thou shalt not take the name of the Lord thy God in
vain : for the Lord will not hold him guiltless that taketh his name
in vain.

“IV. Keep the sabbath-day to sanctify it, as the Lord thy God
hath commanded thee. Six days thou shalt labour, and do all thy
work: But the seventh day is the sabbath of the Lord thy God: in it
thou shalt not do any work, — thou, nor thy son, nor thy daughter,
nor thy man-servant, nor thy maid-servant, nor thine ox, nor thine
ass, nor any of thy cattle, nor thy stranger that is within thy gates;
that thy man-servant and thy maid-servant may rest as well as
thou. And remember that thou wast a servant in the land of
Egypt, and that the Lord thy God brought thee out thence through
a mighty hand and by a stretched out arm ; therefore the Lord thy
God commanded thee to keep the sabbath-day.

“V. Honour thy father and thy mother, as the Lord thy God
hath commanded thee; that thy days may be prolonged, and that
it may go well with thee, in the land which the Lord thy God giveth
thee.

“VI. Thou shalt not kill.

“VII. Neither shalt thou commit adultery.

“VIII. Neither shalt thou steal.

“IX. Neither shalt thou bear false witness against thy neigh-
bour.

/. Mosaic Period

“X. Neither shall thou desire thy neighbour’s wife, neither
shall thou covet thy neighbour's house, his field, or his man-servant,
or his maid-servant, his ox, or his ass, or any thing that is thy
neighbour’s.

“These words the Lord spake unto all your assembly in the
mount out of the midst of the fire, of the cloud, and of the thick
darkness, with a great voice : and he added no more. And he wrote
them in two tables of stone, and delivered them unto me.”

The five books of the Pentateuch were known as the
Torah, or Ancient Law. But modern research tells us
that these texts of the Pentateuch were only gradually
built up during some eight centuries of development. The
earlier parts were probably inscribed in Aramaic, an
alphabetic form of Assyrian. Towards the close of this
first period, when most of them had accumulated, they
were rendered into a language known as Square or New
Hebrew; but the earliest extant example of this style of
script dates from about A. D. 100. Finally, they were
put into Greek, by the scholars of Alexandria, about
B, C. 250.; the law-book Deuteronomy has one of the
oldest texts in this script now surviving; it dates from
A. D. 400 or 500 ; s the following is an illustrative passage : b

“When a man hath taken a wife, and married her, and it come
to pass that she find no favour in his eyes, because he hath found
some uncleanness in her: then let him write her a bill of divorce-
ment, and give it in her hand, and send her out of his house. And
when she is departed out of his house, she may go and be another
man’s wife. And if the latter husband hate her, and write her a bill

[ 106 ]

\ 107 1

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III. 3 — The Book of Deuteronomy, in Greek Script
The Pentateuch was put into Greek about B. C. 250, at Alexandria,
the metropolis of learning; but the oldest extant manuscripts
are some seven centuries later.

[108]

1. Mos/tic Period

of divorcomonl, and givolh il in Iut hand, and sendelh her out of
his house; or if the la t ter husband die, which took her to be his wife;
her former husband, which sent her away, may not take her again
to be his wife, after that she is defiled ; for that is abomination before
the Lord: and thou shalt not cause the land to sin, which the Lord
thy God giveth thee for an inheritance.”

During this period, as the tribal population multiplied
and political life became more complex, the transition took
place from the personal justice of the tribal leader to an
organized hierarchy of local courts. It is thus recorded
(as if it had been done at a single instant) in the traditions
of the book of Exodus:

"And it came to pass on the morrow that Moses sat to judge
the people: and the people stood by Moses from the morning unto
the evening. And when Moses’ father-in-law [Jethro] saw all that
he did to the people, he said, 'What is this thing that thou doest to
the people? Why sittest thou thyself alone, and all the people
stand by thee from morning unto even?’ And Moses said unto his
father-in-law, ‘Because the people come unto me to inquire of God.
When they have a matter, they come unto me, and I judge between
one and another; and I do make them know the statutes of God,
and his laws.’

"And Moses’ father-in-law said unto him, ‘The thing that thou
doest is not good. Thou wilt surely wear away, both thou and this
people that is with thee: for this thing is too heavy for thee; thou
art not able to perform it thyself alone. Hearken now unto my
voice, I will give thee counsel, and God shall be with thee: Be thou
for the people to God-ward, that thou mayest bring the cause unto
God; and thou shalt teach them ordinances and laws, and shalt
show them the way wherein they must walk, and the work that
they must do. Moreover, thou shalt provide, out of all the people,

[109]

///. Hebrew Legal System

able men, such as fear God, men of truth, hating covetousness; and
place such over them to be rulers of thousands, and rulers of hun-
dreds, rulers of fifties, and rulers of tens; and let them judge the
people at all seasons. And it shall be, that every great matter they
shall bring unto thee, but every small matter they shall judge. So
shall it be easier for thyself; and they shall bear the burden with
thee. If thou shalt do this thing, and God command thee so, then
thou shalt be able to endure, and all this people shall also go to
their place in peace.*

“So Moses hearkened to the voice of his father-in-law, and did
all that he had said. And Moses chose able men out of all Israel,
and made them heads over the people, rulers of thousands, rulers of
hundreds, rulers of fifties, and rulers of tens. And they judged the
people at all seasons: the hard causes they brought unto Moses, but
every small matter they judged themselves.’*

The judges thus deputed were members of the priestly
class; in this respect the measure contrasts with the Stage
of a secular judiciary long before reached in Babylonia in
King Hammurabi's time {ante, Chap. II). But the change
was momentous to the future of Judaism; for it signified
that this particular group of primitive Semite tribes were
now developing a legal system, by the activities of a
professional class.

It is in this first, or Mosaic, period of splendor that the
famous Temple-palaces were built.* Within the Temple
enclosure was enacted the whole legal drama of the He-
brew people. The Great Sanhedrin (or, Synhedrion), the
Supreme Assembly of Elders, held its political trials of

[ 110 ]

III. 4— Temple-Palace of Solomon

Within this enclosure was enacted the whole legal drama of the Hebrew people

/. Mosaic Period

Jeremiah ami other leaders in the Court of the Great
Temple. The Hebrew King did justice, as with other
earlier peoples, at the Temple Gate or the Palace Gate;
and we read in the Book of Samuel c that when Absalom
sought seditiously to undermine the authority of his
father, King David, he went and sat at the Gate; and
when any man, that had a controversy, came for the
king’s judgment, Absalom would say to him, “Oh, that I
were made judge in the land, that every man which hath
any suit might come unto me, and I would do him justice!”
And so, says the chronicle, “Absalom stole the hearts of
the men of Israel”.

Solomon, the son of David, in all his glory, became
famous in his day as a royal builder; his date is about
B. C. 900. But Solomon the royal Judge, as a sage skilled
in human nature, made his name for all time a synonym
for judicial wisdom. For God had appeared to the young
King Solomon in a dream, 4 and bade him ask any gift;
and Solomon asked the gift of an understanding heart, to
judge his people, that he might discern between good and
bad. And God gave him such wisdom as no man before
ever had, and his fame was in all nations round about.
And there were two women who lived together and had
each a babe, and one babe died, and its mother exchanged
it secretly for the living one, and they disputed for the

[ 111 ]

1 III . Hebrew Legal System

living one before Solomon, and he said, “Take a sword,
divide the living child in two, half for each.’' And the
false mother said, “So be it”. But the true mother said,
“Nay, nay, do not slay the child, but give it to her!” 5
And Solomon’s wisdom thus discovered the true mother,
and the people saw “that the wisdom of God was in him,
to do judgment”. 6

2. The second, or Classic, law-period is formed by
the legal practice developing between B. C. 300 and A. D.
200 .

The government was in theory still a theocracy, i. e.
divine command inspiring the rulers. The Jewish his-
torian Josephus, writing towards the end of this period,
thus philosophizes : f

“Some legislators have permitted their governments to be under
monarchies, others put them under oligarchies, and others under a
republican form. But our Legislator had no regard to any of these
forms, but ordained our government to be what (by a strained
expression may be termed) a Theocracy, by ascribing the authority

and the power to God And where shall we find a better

or more righteous constitution than ours? This makes us esteem
God to be the governor of the universe, and permits the priests in
general to be the administrators of the principal affairs , and withal
intrusts the government over the other priests to the chief high
priest himself . . . . These men had the main care of the law
and of the other parts of the people's conduct committed to them;
for they were the priests who were ordained to be inspectors of all,
and the judges in doubtful cases, and the punishers of those that
were condemned to suffer punishment.”

[ 112 ]

“And the king said: ‘Divide the living child in two, and give half to the one and half to the other.'
Then spake the woman whose the living child was, ‘O my lord! give her the
living child, and in no wise slay it!’”

2. Classic Period

By this period (In* liinclion of justice had ceased to be
a royal one. The Jewish people came now successively
under the suzerainty of Persian, Greek, and Roman
rulers; but in their internal government the supreme
authority — religious, social, and political; legislative and
judiciary — was vested in a Senate, known finally under
the name Great Synhedrion. (This was a Greek term,
meaning “assembly,” hebraidzed as “sanhedrin”; the
native Hebrew term was “Bet din hagadol”, or, “high
council”, “high court”.) It consisted of seventy-one
members, and its most frequent activity was that of a
Supreme Court. Under it were two intermediate syn-
hedrions in Jerusalem, and others in the larger cities.
Each lesser synhedrion consisted of twenty-three mem-
bers. Beneath them all were village courts of three
members. The synhedrion of twenty-three members sat
in a semi-circle, and in front of each member sat three of
his chosen disciples, making three lower semi-circles.
Each judge thus had three juniors to assist him, and when
a vacancy occurred the place was taken by the junior
next in line. Thus the courts were recruited by a system
of apprenticeship and promotion from the lower to the
higher.

And the supply of recruits was furnished by the
numerous schools of religious law; those aspirants who

[ 113 ]

’ III. Hebrew Legal System

graduated and were ordained as masters (“rabbi”) be-
came eligible for election to a synhedrion . 6 The most
famous of these schools is said to have had twelve hun-
dred students. The Jewish judge could lawfully follow

III. 6 — A Doctor of the Law .

any other occupation on the days when the court was not
in session; and some of the most eminent were principals
of these schools of law. Thus there was a constant con-
tact between the courts and the schools. Indeed, the
schools were the preservers of the law to posterity; for
although there were clerks attached to every synhedrion,

[ 114 ]

2. Classic Period

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during this period, are known only through the reports of
discussions in the schools, long carried in memory (extra-
ordinary as this seems) and reduced to writing in a later
period.

Jesus first attracted notice by his precocious display
of learning and wisdom in his arguments of law with the
rabbi ; 7 for when his parents, going home from Jerusalem,
discovered that their boy of twelve years had been left
behind, they turned back anxiously, and after three days
they found him in the temple, sitting in the midst of the
doctors of law, both hearing them and asking them
questions.

Under the Roman sovereignty, which here inter-
vened, the Jewish people for two centuries preserved the
administration of their own law, in the main. The ruler
Herod was still termed king; and at the inner Court of
the Temple at Jerusalem a stone known as Herod’s Pillar,
inscribed in Greek and Latin, was the symbol of this
independence; it warned intruders of the death penalty
for any Gentile who entered the holy spot.

But the convulsive political rebellions of the Jews,
after the time of Jesus, led the Roman Emperor Vespasian
to take rigorous revenge. Jerusalem fell, under the as-

M15 1

>1. Talmudic Period

sn lilts of Titus, son of Vespasian, in A. I). 70. And the
soldiers carried away to Koine the sacred Ark of the Law, 8
containing the Scroll of the Law, and the Seven-Branched
Candlestick, as part of the spoils in Titus’ triumphal
procession. The Hebrew general was cast headlong from
the Tarpeian Rock, pursuant to ancient Roman custom
with a vanquished people. Hebrew self-government
ended; and their legal system, as such, ceased to prevail.

3. The third period, the Talmudic, from A. D. 200 to
A. D. 500 is formed by the Talmud, i. e. reports of all
recorded cases and commentators since about B. C. 300,
digested in two authoritative collections, — the Mishnah, or
codified text, compiled about A. D. 200, in New Hebrew
script, and the Gemara, or commentary, about A. D. 300-
500, compiled in Aramaic script.

No systems, except the Roman, the Mohammedan,
and the Anglican, have surpassed or equalled the Hebrew
in emphasizing development by reasoning based on case
law, and in preserving the fame of individual jurists and
judges and the annals of their decisions. The names of
nearly one hundred rabbi are mentioned in the Talmud as
the authors of decisions; and many more must have con-
tributed. The most famous, in the compilation of the
Talmud, was Rabbi Hillel, a contemporary of Jesus of
Nazareth, and president of the Great Synhedrion. He

[ 117 ]

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III. 9 — The Talmud

The Talmud is an immense cyclopedia, ranging over history, mathe-
matics, medicine, theology, and metaphysics, as well as law

[ 118 ]

.1. Talmudic Period

lirst orp>;uii/(‘(l t In* vast mass of materials. A great suc-
cessor, Rabbi Akiba, in the 12<I century A. D., improved
I lie system. And then Rabbi Judah, at the close of the
century, gave final form to the collection, known thence-
forth as Mishnah, or “learning”. It contains sixty-three
concise treatises. During the next three centuries copious
. discussion in the schools centred around the text of the
Mishnah. At Jerusalem, about A. D. 300, a digest of
these discussions was made ; and at Babylon (another and
even greater Jewish center), about A. D. 500, another
collection was made; these were known as the Gemara
(or, “Commentaries”). The Mishnah and the Gemara
together form the Talmud. 8

The Talmud is an immense cyclopedia, ranging over
history, mathematics, medicine, theology, and meta-
physics, as well as law. For the law, it serves as the
copious record of elaborate arguments and decisions on
rules and cases adjudged by the doctors of the law.

The style of reasoning is illustrated in the following
passage on the subject of Bailments: 8

[The Talmud.] “Mishnah, V: All special artificers are con-

sidered bailees for hire. If, however, they have notified the owners
that the work is ready and they may take it, and the payment
should be made thereafter, they are considered from that time
gratuitous bailees. If one says: ‘Guard for me this article, and I
will guard yours,’ the depositary is considered a bailee for hire. If

[ 119 ]

III. Hebrew Legal System

one says: ‘Guard for me this article,’ and the depositary answers:
‘Leave it with me,’ he is a gratuitous bailee. If one has lent money
on a pledge, he is considered a bailee for hire. R. Jehudah, how-
ever, said that if he has lent him money on a pledge (without
interest) he is considered a gratuitous bailee; if, however, he has
lent fruit on the pledge, he is considered a bailee for hire . . . . .

“Gemara: ‘//, however , they have notified ,’ etc.

There is a Mishna (in Chapter VIII of this tract): ‘If the bor-

rower told the lender to send through a messenger, and he did so,
he is responsible for an accident; and the same is the case when he
returns it in that way.’ ....

“Huna Mar b. Mrimar, in the presence of Rabina, raised a con-
tradiction between the two Mishnas mentioned above, and after-
wards explained them as follows: In our Mishna it is stated: If

they said, ‘Take yours,’ etc., they are considered from that time
bailees for hire; and the same is the case if they have notified the
owners that the work is ready for them. Is it not a contradiction
from the above-cited Mishna that if the borrower told him to send,
etc., he is responsible? (Hence we see that it is considered under
the control of the borrower even when he returned it, and this
contradicts the statement in our Mishna, which is, that as soon as
the specialist has notified the owner of the article that it is ready
for delivery it is considered under the control of the owner.) And
he himself answered that Raphram b. Papa said, in the name of
R. Hisda, that the cited Mishna treats of when the borrower has re-
turned the loan through his messenger before the agreed time has
elapsed (consequently it was under his control unquestionably);
but if he did so after the elapse of the agreed time, he is free.

“The schoolmen propounded a question: What is meant

by the expression ‘free’? Is it meant free of the responsibility of a
borrower (who is responsible for an accident also), but that he is
still responsible as a bailee for hire (who must pay for theft and
loss), or does it mean entirely free from any charge? Said Amimar:

[ 120 ]

.1. Talmudic Period

1 1 seems I li;M lie is live only I rum l lie responsibility of a borrower,
but not from the responsibility of a bailee for hire; as he has derived
benefit from it, he is considered such

Guard for me y ’ etc. Why so? Is this not to be considered a
guard in the presence of the owner? .......

“The rabbis taught: If one say: ‘Guard for me this article, and
I will guard yours to-morrow; or, lend me, and I will lend you’;
‘guard for me, and I will lend you’, or vice versa, all are considered
bailees for hire, one to the other.

“There were sellers of spices who agreed that each one of them
should be engaged one day in each week in preparing food for the
whole company. One day they said to one of their number: ‘Go
and bake bread for us’, and he replied: ‘Then guard for me my
garment.’ They, however, neglected to do so, and the garment was
stolen ; and when the case came before R. Papa, he made them re-
sponsible. Said the rabbis to R. Papa: Why should they be re-
sponsible? Was not the neglect in the presence of the owner?
And he was embarrassed. Finally it was learned that at the time
the garment was stolen its owner was not occupied in baking, but
was drinking beer (consequently the decision of R. Papa was a just
one). But why was R. Papa embarrassed? There is a different
opinion between the Tanaim in such a case. According to one, he
is free; and according to the other, he is not. Could not R. Papa
say that he agreed with the latter? The case was, the day on which
he was told to bake for the company was not the day appointed for
him, and he was asked to do this as a favor. He, however, says:
‘For this favor you will favor me by guarding my garment,’ and it
was not owing to wilful neglect that it was stolen. And R. Papa
made them responsible according to the law of a bailee for hire; and
the rabbis told him that the company ought not to be held re-
sponsible, because of the law concerning a guard in the presence of
the owner, to which all agree that there is no responsibility, and

[ 121 ]

///. Hebrew Legal System

therefore he was embarrassed; but finally it was learned that his
decision was correct as stated above.

“There were two men on the road; one was tall and the other
was short. The tall man was riding an ass, and with him an ironed
sheet for a covering, and the short one was covered with a cloak (a
woolen one). When they came to cross a stream, the short man
placed his cloak upon the ass, and instead of it took the sheet of the
tall man and wrapped himself up in it, and the water carried it
away. When the case came before Rabha he made him responsible.
Said the rabbis to Rabha: Why should he be responsible? Was it
not in the presence of his owner (i. e., at the same time the sheet was
lost, the lender was crossing the stream with the borrower’s cloak; is
this not equal to the case, ‘guard my article, and I will do so with
yours,’ of which it is said above that if it was at the same time
there is no responsibility) ? And Rabha was embarrassed. Finally,
it was learned that the short man took it without the consent of his
comrade, and he also placed his cloak upon the ass without con-
sent

“ ‘ On a pledge , he is a bailee for hire ,’ etc. Our Mishna is not in
accordance with R. Eliezer of the following Boraitha: ‘If one lends
money on a pledge, and the pledge was lost, he may take an oath
that there was no wilful neglect in guarding it, and collect his money
from the borrower; so is the decree of R. Eliezer.’ R. Aqiba, how-
ever, maintains the defendant may claim, ‘You have lent me the
money only on this pledge, and as the pledge is lost, so is your
money.’ But if he lends a thousand zuz on a note, and also added a
pledge, then all agree that he loses his money in case the pledge is
lost (as then the pledge is not for any other purpose than to collect
the money from it in case of default; otherwise the note would be
sufficient even from an encumbered estate. Hence we see that
R. Eliezer considers the possessor of the pledge a gratuitous bailee,
contrary to our Mishna).

“Shall we assume that the above-mentioned older masters

[m]

.1. Till mu dir Period

|nl (hr Mislmn | u ii< »< 1 1 ^peuk nl ;i ruse in which l lie pledge was not
worth the amount lent upon it, and (.heir point of differing is in a
ease which is similar to Samuel’s following theory: If one lends to
his neighbor a thousand zuz, and pledges for them the handle of a
seylhe only, if the handle is lost, the thousand zuz are lost (as he
accepted it as a pledge for his money, he intends to collect his
money only from it)? Nay, when the pledge was not worth the
amount lent, none of them agrees with Samuel, as they speak of a
pledge worth the amount lent

“But is it to be assumed that as to the above decision of R.
Joseph the older masters differ? Nay; all agree with his decision.
I lere, however, they differ in case the lender uses this pledge for the
purpose of deducting from the debt. According to one, a meri-
torious deed was done by him by lending the money (for which he
will be rewarded), and he is therefore considered a bailee for hire;
and according to the other, the using of the pledge is for his own
sake, and there is no meritorious deed, and therefore he is con-
sidered a gratuitous bailee.”

4. The fourth, or medieval, period of Hebrew law
begins at the dispersion of the Jewish nation, which cul-
minated about A. D. 500 and extended over the next
thousand years. In this period learned rabbi wrote
treatises (in Hebrew or Arabic), compiled codes, and thus
perpetuated the traditions of the law. One of the most
famous was Maimonides, 10 who lived in North Africa in
the 1400's, and wrote numerous works. By this means the
common customs of religious and family life and com-
mercial practice were kept alive, though the race was
scattered in many countries.

[ 123 ]

' III. 11 ebrew Legal System

In England, after the Norman conquest, large numbers
of Jews came over from the Continent. Beginning about
A. D. 1200, and lasting until their expulsion a century
later, a special status was given to the Jewish communi-
ties by the English kings in two royal charters. One of
these charters provided that civil disputes in which Jews
alone were concerned should be left to their own tri-
bunals: 11

[Charier for Jewish Civil Justice.] “John by the Grace of God,
etc. Know that we have granted and by our present charter con-
firmed to our Jews in England that the breaches of right that shall
occur among them, except such as pertain to our Crown and Justice,

as touching homicide [etc.] be examined and amended

among themselves according to their Law, so that they may ad-
minister their own justice among themselves”.

But no records of this Jewish justice appear to be
extant.

The other charter provided for suits between Chris-
tians and Jews, and prescribed the procedure and mode
of proof. For such suits a special tribunal was created —
a branch of the Exchequer Court, “Scaccarium Jude-
orum”. Now the Jews, debarred from most other oc-
cupations, made their living chiefly as lenders of money;
hence, money-claims founded on bonds” were a principal
subject of this litigation; and the Crown, for the better
protection of the creditors (as well as in its own interest

IW]

III. 11— Shetar (Dee
The Jewish term for deed or bond w
upper part is in Latin, the 1

III. IJcbr 'civ Legal System

as a tax-gatherer), established “archives”, or registries of
bonds, in which the instrument must be recorded, in order
to be valid.

The Englishman’s bond, or contract, was made out
in the usual form of English practice, thus: 1

[English Debtor's Bond to a Jew.] ‘ ‘Know all men present and
future that I William son of Ralph of Hetheby owe to Jacob son of
Jacob a Jew two marks of silver to be repaid on the octave of St.
Michael in the 44th year of the reign of King Henry son of King
John, and unless I shall so repay I shall give to him every week two
pence per pound interest as long as I am bound by the said debt,
and thereto I have pledged to him all my lands and chattels. Done
Wednesday after Palm Sunday of the said year.”

But when the Jewish creditor assigned or released the
debt, he made out the instrument in the form to which
he was accustomed in dealings with his own people, thus : 5

[Jewish Creditor's Release .] “Aaron son of Abraham acknowl-
edged by his starr that he quitclaimed and pardoned to Robert
de Mares and his heirs and assigns all the manor of Akemere which
he bought of John de Mares brother of the said Robert; so that
neither he nor his heirs can demand or claim aught upon the said
manor with its appurtenances by reason of any debt which the said
John owed him from the creation of the world to the end.”

The Jewish term for deed, or bond, was “shetar” or
“starr”, from the Hebrew “starra” (memorial). It was
sometimes written in Hebrew with a Latin translation,
sometimes in Latin alone, sometimes in Latin with He-
brew characters. This term “starr” is supposed by some

•/. Medieval Period

sc holars (but with little ground) to have given rise to the
famous name “star-chamber”, on the theory that these
Jewish starrs were Once preserved in that room.

The Jews in those days lived their family life largely
by their own rules; for the Jewish communities were often
-compelled by political prejudice to reside in segregated
areas of city or country. A highly decorated marriage-
contract from the eighteenth century 12 illustrates how
they developed their own legal forms for transactions,
especially in family affairs, such as inheritance and
marriage.

Many of these customs are surviving today. For the
modern certificate of marriage, there is a printed form of
1915, published in New York. 1 * It reads as follows:

[Certificate of Marriage , A. D. 1915.] “On the 5th day of the
week, 15th day of the month of Nisson, year 5680 since the creation
of the world.

“Be it known that the bridegroom Jacob, son of Abram, said to
the maiden Sarah daughter of Solomon, ‘Be thou my wife according
to the law of Moses and of Israel, and I will labor to support thee
honorably and to nourish thee, according to the custom of Jewish
men who labor for the honorable maintenance and support of their
wives, and I grant thee as nuptial gift the price of thy maidenhood,
two hundred zuzin, due thee according to the law of Moses. I am
also to provide thee with food, raiment, and all necessaries, also to
visit thee after the manner of the world’.

“Thereupon the said maiden consented to become his wife and
brought unto him the dowry given to her by her family, consisting
of [enumerating the articles] . . .

[ 126 ]

[ 127 ]

v/ tvuo>"WJ rKpTPS wpOTyi t*M w pev pr^unmnM prhjfry
w'j'i w Kr’^r k ^D Stands -1 p xnacnm icpu xi icrairo

H»V>ya H*?raa>H 3 o kjo'od

oneoni r^ornan, Win / von rwsttxnrh or w rwAvraeoTnar©
nma wfropr*p%^ l 'yKan^»o«3rr»n* pouNTpoStr^ iww it«m
mar -Trfea?jrnnnuooj3TO% n u w am wy *o

nVuri mo r^o ^ V? vx>o xyvxr* nmvo trxb nS W* rcfrf ,-frjmjjp

4 — >v^^o^r^vv71^mnwKS*wro^nJt^tTOS^l(1■l»BnlOA»
rahsv- :-jrwipnpnrp««f^flK I iraiuw < ir«pnemit'

kww i<utpj pn*iwmrcao' r«w pn p©o» r™ 1 r* 4 **
W^V 11 ■ap w *arrwi m ,*mo*T»tjco*TTTa m® tS

fvrv *n» «^H^KJ^3.^7TJy-j/i-WrtvarKfTitV»nf»o

w* JnsVoCpr'anvvsa uip qny yaSrj-O'S p^7 tok •ja.TS rfryjrn
to w©irom»Harajqni oooStT’nrSpcp raaoo rh q*cnw jjvph
-vsm pi rfriim rni mbo ififr ipaSt* ptr*» pyr* tM/ * w ' 1 xr-0 p
x'jf© wi h/u f© ust* iron* /H"iw *ri ;m w- an Sra ofr©H vb 3 iv>

7 uup 1 rw j*h -Mrit' Vj-a nj-wnrn n^a *Kjrr by rrVap wwom

1 3 Jin xirwpyj w pPDJ ’jpe/* KjK-mjrn’Kp-i inansr S nw ^nr

r-^-rsa Trvrtjm© ■ S© tqtv jv-rw r-n ;m 'r ni Si’s an-©n

+4.^AHr^rx*t3 hV\ Si n ypnS» j '”x*>rt m*w» J*y »j jn S*r*"
&-i- ^ -vw wr«rh ~a*nm *-co fjx xr.pi wua

J iiatS pm fm -i^fSr -*i 1 -rjMOJ^ .-r- or -rv» © ’jr 3x1 *"*'Q

n- httvo nj tv ptf*-vrw»r3 pS* ult; mo »rro m*a*n

crpi -v ncSai t>fv a KTpnS ^‘r»*jm 1 **$ A *t , *wr xi©* 1 w 1 ^ Troo

III. 12 — Marriage-Contract, A. D. 1795

\ 128 ]

III. 13 — Certificate of Marriage, A. D. 1915

[ 129 ]

///. l/cbf 'cw I A'£dl System

“And the aforesaid bridegroom said, ‘By virtue of (his docu-
ment I hereby accept responsibility for the integrity of this dowry,

and of my addition thereto, for myself and my heirs, all

of my property I pledge as security for the payment of the sum set
forth above, and I even pledge the very cloak on my shoulders, this
security to continue during my life and after that, from ,-tHis day
forth forever.’ ....

“We [the undersigned marriage-go-betweens] have purchased
the right of this man, namely the bridegroom, and have vested it in
this worthy woman, namely this maiden, entitling her to all that is
above set forth, by a token with which the right has been duly pur-
chased. And this certifies that the agreement is valid and binding.”

5. And this brings us to the fifth and last period in
the history of the Jewish legal system. From A. D. 1600,
nationalism in Europe began to amalgamate all races who
lived within given territories, and to emphasize national
languages ; so the Hebrew language became only a second-
ary one for Jews. During this period the Talmud was
critically studied and translated into the various national
languages. In New York, in 1915, Rabbi Kadushin has
even produced a new modern Hebrew Code in English.

But even today, the Scroll of the Law 14 , known as the
Torah, or precepts of Moses, fixed on two staves and
unrolled from right to left in ancient fashion, is preserved
in every synagogue; and the Ark of the Law, standing at
the altar of the Synagogue, is thus the most important
treasure in the Sanctuary, because it contains this the

[ISO]

III. 14 — The Scroll of the Law

r mi l

Sources

Sources of Illustrations

1. Alaf> of I 'ales t in e . From W. D. Morrison , “'Hie Jews Under Roman Rule,”

I dale. I (New York, Putnam, I SIN)).

2. Moses Breaking the Tables. From the reproduction of the painting by
Robert Leinweber, in the miniature series “Die Heilige Schrift”, 2d ser.,No.
XT (Berlin, Kunstverlag Palette, 192-).

3. Deuteronomy , Greek Script. From the facsimile in Henry A. Sanders , “The
Old Testament Manuscripts in the Freer Collection”, the page showing c. 24,
verses 1-4 (New York, Macmillan, 1917).

4. Temple Palace of Solomon. From the reproduction of the painting by
W. H. Lippincott y in H. H. Bancroft's “Book of Wealth”, section I (cited
ante, chap. II).

5. Solomon's Judgment. From the reproduction of the painting by Robert
Leinweber , in the series “Die Heilige Schrift” (cited supra), ser. 1, No. V.

6. Doctor of the Law. From a reproduction by Newton & Co ., London, of a
drawing by Eugene Burnand.

7. Jesus Arguing with the Doctors. From a reproduction of the painting by
Heinrich Hoffmann in the Dresden Gallery.

8. Titus' Arch. From a restoration of the sculpture on the arch.

9. Talmud Text. From the facsimile of the title-page of the Wilna edition of
the Babylonian Talmud in Michael L. Rodkinson , “The Talmud” (trans-
lated), vol. X, p. 54 (New York, New Talmud Publishing Co., 1897-1903;
now owned by the George Coleman Publishing Co., Boston).

10. Treatise of Maimonides. From a facsimile in the “Jewish Cyclopedia”,
vol. VIII, frontispiece (New York, Funk & Wagnalls, 1902-1912).

11. Shetar of A.D. 1236. From a facsimile in the “Jewish Cyclopedia”, vol. XI,
p. 286, of the original in the British Museum.

12. Marriage-Contract , A. D. 1795. From a facsimile, in the “Jewish Cyclo-
pedia”, vol. Ill, p. 128, of the original in the New York Public Library.

13. Certificate of Marriage , A. D. 1915. From an original form furnished and
translated by Israel Isaac Himmelstein, Esq., of the Chicago Bar, and
printed by the Hebrew Publishing Co. (New York, 1915).

14. Scroll of the Law. From a reproduction by the McIntosh Stereopticon Co.,
Chicago.

15. Ark of the Law. From an illustration in the “Jewish Cyclopedia”, vol. I,
frontispiece.

[1SS]

III. Hebrew Legd! System

Sources of Documents Quoted in Text

a. The Ten Commandments. From the version in Deuteronomy , V, 7-22;
the other version is in Exodus, XX, 3-17.

b. Deuteronomy, Greek Script. This contains vv. 1-4 of C. XXIV.

c. Samuel, XV, 2-6.

d. Solomon’s Dream, I Kings, III, 5.

e . Solomon’s Judgment, I Kings, III, 16-23.

/. Josephus Passage. From "Works of Flavius Josephus ”, ed. Whiston,
vol. II, pp. 512, 514 (2 vols., Phila. 1829).

g. Talmud passage; from the book Baba Metzia, part II, ch. VI, as translated
in Rodkinson (cited supra), vol. VI, p. 201.

h, i,j. Charter, Bond, and Starr, in England. From J. M. Riggs , "Select Pleas”,

etc. (cited infra), pp. XIV, 2, 11.

General References

Jewish Cyclopedia (cited supra).

M. L. Rodkinson , "The Babylonian Talmud” (cited supra).

A. R. S. Kennedy, "The Institutions and Legislation of Israel” (London, 1908).

D. W. Amram, "Leading Cases in the Bible” (Philadelphia, 1905).

Charles F. Kent, "The Messages of Israel’s Lawgivers” (London, 1902), "Israel’s
Laws and Legal Precedents” (1907).

M. Schwab , "Le Talmud de Jerusalem” (1871-1890, 12 vols.).

J. L. Kadushin, "Jewish Code of Jurisprudence” (New York, 1915; 2d ed. Boston,
1921).

S. Mendelsohn, "The Criminal J urisprudence of the Hebrews” (Baltimore, 1891).

J. M. Riggs, ed. "Select Pleas, Starrs, and Other Records from the Rolls of the
Exchequer of the Jews” (Selden Society, vol. XV, 1902).

Mayer Sulzberger, "Am-Ha-Aretz, the ancient Hebrew Parliament” (Philadelphia,
1910); "The Ancient Hebrew Law of Homicide” (Phila. 1915); "The Polity
of the Ancient Hebrews” (Phila. 1912).

I. H. Levinthal , "The Jewish Law of Agency” (New York, 1923).

Henry Schaeffer , "The Social Legislation of the Primitive Semites” (New Haven,
1915).

R. V. French, "Lex Mosaica” (London, 1894).

George F . Moore, "Judaism in the First Centuries of the Christian Era: The Age
of the Tannaim” (Harvard University Press, 2 vols. 1927).

[m\

IV

77 ic ( 'Itincsc Legal System

(/) Political Principles

1. The lliird oldest system, and the only
surviving old one Conservatism and filial
piety ■•Confucius’- political philosophy.

2. Philosophy of justice.

3. A/» government of men, not laws — Abso-
lute governors, responsible for producing
popular contentment.

I . t 'onciliation before litigation.

a. Legislation based on popular custom and
sentiment.

(i. The laws penal in form.

7. Practical justice; the testimony of Perera
the Portuguese.

(II) The Old Legal System

8. Early codes — the “Burning of the Books’’

Tsing Code of A. D. 1650— Lu and Li —
Texts on Adoption and on Mortgage.

9. Conveyancing — Mortgage deed of 1870 —
Registration of land-titles.

10. Court procedure.

11. Appellate justice — Precedents — Supreme
Court opinions of A. D. 1827 and 1831 on
adoption and marriage — Record of a trial
for manslaughter in A. D. 1808.

12. Law-treatises — Imperial edicts — Judicial
rescript — Legislative decree — Edict on
stone.

(Ill) The New Legal System

13. Revolution of 1912 — Constitution of 1923
— New codes — New Supreme Court de-
cisions.

14. Durability of China’s institutions.

IV

The Chinese Legal System

MIC third earliest legal system of the world, in
origin, is the Chinese, beginning in history be-
fore B. C. 2500. Its unique distinction is that it
is the only old one that has survived continuously to date
a period of more than 4000 years; in comparison, the
other living systems of today are but children.

Through the centuries the Chinese nation absorbed
several waves of conquest from the North; 1 and the
massive gates and walls which still protect their great
cities are a relic of the military struggles of the late Middle
Ages. And it must be remembered that the Chinese
themselves are a totally different race-stock from their
successive conquerors, the Turanian Mongols, Tartars
and Manchus.

(I) Political Principles

1. The sturdy survival of the Chinese as a people is
due largely to their strong clan and family structure,
which is equalled only by the Semites (the Chinese law,
for example, recognizes one hundred and one degrees of
relationship), and to their consequent conservatism, which
by some observers has been miscalled “stagnation”. In
the grove of trees near his home, 2 Confucius expatiated to
his disciples upon the ancestral customs. “I”, he said,

[W }

IV. 2 — Confucius and His Disciples Studying the Precedents

“am a transmitter and not a maker; for I trust and admire
the men of former times”. “Filial piety is the root of all
good conduct. What is filial piety? It is the skilful
carrying out of the wishes of our forefathers.”

Confucius’ philosophy, which is not a religion, but
covers the whole range of personal morality and practical
politics, has now pervaded Chinese life (in spite of the
inroads of rival systems) for 2400 years. It rests on a
passionate yet rational respect for those conventions
which the experience of the past has verified. Confucius,
one of the world’s wisest men, was a chief justice about
B. C. 500. He left only one grandson, but several thou-
sand of his descendants are now living, and form the only
hereditary aristocracy in China. Confucius was born in
Kufu, in the province of Shantung; but spent his life in

\w\

2 . Philosophy of Justice

m.my provinces as a slalesman, a philosopher, and a
.indue, uniting in one man l lie careers of a Jefferson, an
Kmerson, and a Marshall.* One of his sayings has a
deathless truth for us: “As a judge”, he said, “I decide
disputes, for that is my duty; but the best thing that
could happen would be to eliminate the causes for liti-
gation!”

2. The history and characteristics of the Chinese
system of law and justice cannot be appreciated without
taking into account the general philosophy of life that
underlies it. In the following passage, a modern legal
scholar lucidly summarizes that philosophy and points
out some of its effects on ideas of law and justice: 3

“Since the dawn of its history, China has believed in the exist-
ence of a natural order of things, or law of Nature, including all parts
of the universe and adjusting them harmoniously with one another.
This order of Nature was not made; it exists and is its own reason
for existence. Humanity is a part of it, and must conform to it.
And as the elements in this order of Nature are interdependent,
whatever affects one element reacts on the others also. . . .

“The consequences of this theory in the field of government and
of justice may be readily perceived; here are the most important:

“This natural law does not yield precedence to positive law,
i. e. laws representing human experience and wisdom. Positive
law ought to confine itself to translating the natural law into written
formulas. If this translation is correct, the written law is good and
binding; if the translation is incorrect, i. e. if the prince or the
governor in formulating his decrees has misinterpreted the law of

[US]

IV. Chinese Legal System

nature, the written law is not binding. A Chinese will regard as
binding a rule promulgated even by doubtful constitutional authori-
ty if he deems it conformable to ‘the edicts from on High’ ; and he
will deem himself free to disregard it if he finds it in disaccord with
the natural law. The notion will not occur to him that the same
act can be permissible or forbidden, good or bad, just or unjust,
independently of its intrinsic moral quality and solely because the
holder of political power has so labelled it. Thus the almost
religious respect for positive law, marking our Occidental civiliza-
tions of Greco-Roman origin, does not exist in China.

“A consequence is that the positive law is observed only so far
as it has received the effective assent of the community, i. e. has
been consecrated by custom. . . .

“Furthermore, if we ask how one can determine in advance
whether a rule of conduct will receive this popular sanction, it must
be said that no exact answer can be given, because the Confucian
philosophers never formulated or defined the natural law even in its
broad lines; but that in general the Chinese look to Moderation,
Humanity, Equity, as the governing idea for social relations. The
conception of strict logical law, independent of the purpose in hand
and the personality of the parties to a dispute, remains an alien
notion. The Chinese does not conceive of an absolute right or
wrong in law.

“It follows that in general, he seeks a middle road, the golden
mean, a compromise which will ‘save the face', an adjustment by
settlement between the differing contentions. The magistrate, for
the Chinese, is a friendly arbitrator, rather than a dominating
authority bound to declare the law and to secure its respect. In
the current practice of the interior districts, a court decision in a
civil case is executed only when the losing party signifies his ac-
ceptance of it; for it would be contrary to natural law to use com-
pulsion on a free mind.

J. Men, Not Laws

"And finally, since positive law is the expression of natural law,
its violation, even of rules purely civil (as we should say), will in-
volve at the same time a penal sanction, for it will be a branch of the
preexist jnj? order of nature, — a transgression liable to cause danger-
ous disturbance in the community.”

This philosophy of life, then, so different from the
Occidental, leads to some special traits underlying all
law and justice:

;5. A marked contrast of the Confucian political phil-
osophy with Occidental systems is that its fundamental
maxim is emphatically “a government of men, not
laws”, the reverse of our own maxim; for the Chinese
philosophy of government is that a good ruler makes a
happy people : b “The Master said ‘Let there be Men, and
Government will flourish. But without the right men,
government decays. Therefore the success of govern-
ment lies in getting proper men. If you lead the people
correctly, who will dare not to be correct? Hence the
institutions of a ruler are rooted in his own character
and conduct”’. Thus Chinese political science relies on
the wisdom and discretion of the ruler rather than on the
text of laws.

It is indeed true that in the centuries just after Con-
fucius (B. C. 400-200) a school of philosophers arose — -
known as the Legists — who repudiated entirely the
doctrine of a government of men, in favor of the doctrine

[ 144 ]

[145]

IV. Chinese Legal System

of a government of laws; their expositions arc powerfully
reasoned, and would make good reading with us today.
Under the Chin and the Han dynasties (about B. C. 200),
for a century or so, this philosophy obtained the upper
hand, and was effectively practised by able statesmen of
that era. But its dominance was brief. It was but a
passing episode. The Confucian principle, congenial as it
is to the racial Chinese nature, was soon once more en-
throned in Chinese government, and firmly maintained
that place during the next two thousand years.

As a logical consequence, there was but a single of-
ficial directly ruling each province or locality; and his
yamen, or office, 4 was the all-inclusive center of local
administration. The magistrate, or governor, had all
authority, — dispensing justice, collecting taxes, officiating
as political executive, as chief priest, and as moral guide
and censor. In his judicial duties, he was of course as-
sisted by a staff of clerks and advisers, learned in law and
procedure. The governor was responsible to the Em-
peror at Peking, for maintaining law and order, and for
keeping the people contented and prosperous, and was
judged solely by results. Should he fail to find and punish
the guilty person in a notorious murder or robbery, he was
almost certain to be removed from office. Should a
rebellion break out and be left unsuppressed, he was dis-

[ 146 ]

[ 147 ]

IV. 4 — A Governor's Yamen, or Official Headquarters
The magistrate, or governor, had a// authority, — dispensing justice, collecting taxes, and
officiating as political executive, chief priest, and moral guide and censor

IV. Chinese Legal System

graced for life, and might even be forced to suicide by the
fatal silken cord sent him for the purpose from the Em-
peror. But while he lived and was governor, his authority
was sole and absolute, over millions of people. The idea
of one-man rule was second nature with the Chinese

people; so that when the ambassadors of the Dutch
Republic visited Peking in A. D. 1795, their hosts ex-
pressed astonishment on hearing that there existed such a
political monstrosity as a “republic”. The Chinese
governor was in his way a master-mind, a comprehensive
man of the world, — a unique character, not paralleled in

any other legal
system. 5

4. Another
notable conse-
quence of the Con-
fucian philosophy
(or Chinese char-
acter) is that con-
ciliation and mu-
tual adj ustment
are looked upon
as ideal elements
of justice. “As a

IV. 5 — A Governor

judge,” said Con-

[ 148 ]

4 . (lont ilifition

lucius, “I decide disputes, lor (hut is my duly; hut the
hesl tiling would he to eliminate the causes for litigation".
The ( lerman jurist Ihichta has concisely stated the
antithesis between justice and law:

“The relationships of law are the relations of one man to
.another, and may be called legal relations. But the various human
relationships do not enter, in their full extent, into the sphere of
law, because the legal notion of a person rests upon an abstraction
and does not embrace the whole being of man. There must, there-
fore, occur much modification and subtraction before we reach the
special relations which alone are involved in the idea of a law.
'Thus, suppose a man has arisen from a protracted illness, and in
order to pay the bill of his physician, to provide for the urgent
wants of his family, due to his recent incapacity, and to procure the
means of beginning business again, he goes to a well-disposed
neighbor, whom he has helped in former times, and obtains a loan
at the usual rate. How much of all this must we not leave out in
order to ascertain the purely jural relations between the parties!
Compare with this the case of the rich man who borrows capital
merely to add to his possession by a new speculation, and consider
the effort of abstraction which is required in order to assimilate the
resulting legal relations. And yet the legal relations in these two
cases are identical.”

To the Anglo-Norman lawyer, accustomed to do
homage to strict legal principle as in and for itself the
“summum bonum M of law, and to regard legal justice as
manifesting itself only in a system of unbending rules, this
quotation will indicate better than anything else the great
gulf that is fixed between his own system and that which
was indigenous to China. By making generalizations into

[ 149 ]

’ IV. Chinese Legal System

hard-and-fast rules, by strictly eliminating in individual
cases a variety of important moral considerations, the
Anglo-Normans have succeeded in creating a special type
of justice. This tendency of theirs is so strong that
English Equity, the one great effort to counteract it, has
become in the end identical in these respects with the
whole system.

Yet there are peoples to whom this type of justice is
utterly alien. The “struggle for rights’’, which the great
German jurist, von Ihering, inculcated as the basis of
civic law and order, is alien to Chinese thought. An un-
yielding insistence upon principle, and a rigid demand for
one’s due, are almost as reprehensible as a vulgar physical
struggle. Moral force, and the “rule of reason”, should
control, rather than strict technical rights. Compromise
is the highest virtue; intolerance and obstinacy, a mark of
defective character. Nothing is so important that it can-
not be compromised for human welfare or comfort or
dignity. Hence the significance (so misunderstood by the
Occidental) of “saving the face”, i. e. of obtaining a re-
spectable compromise in a dispute. Hence, also, the
universal resort to mediation or arbitration, precedent to
going to law, and usually removing that necessity.'

5. Related to this is another marked feature of
China’s legal system — the subordinate part played by the

[ 150 ]

5 . Vuhlic Opinion

Idler of the law, and by legislation as such. The ruler
should frame the laws to voice the best sentiments and
wants of the people, not to impose his personal will upon
an unwilling people; else there can be no contentment.
Confucius said: “When a prince loves what the people
love and hates what the people hate, then he is what is
called ‘the parent of the people’.” The imperial authori-
ty, though nominally supreme, is powerless to oppose
national habits of thought. Thus, the mere enactment
of a law, and the mere letter of its text, are in themselves
not vital. The law should reflect custom and public
opinion. If a local governor finds or introduces a com-
mendable usage, he may send an account of it to the
ministry at Peking; the minister submits it to the supreme
council, and if approved, it is notified to the other prov-
inces. If another governor accepts, it can become law
there at once; if it is generally accepted elsewhere, it is
put into the code, but does not necessarily become strict
law until it is generally familiar. This is the “rule of
reason” applied to legislation.

Thus the political system of personal discretion and
one-man rule — from emperor down to magistrate — is
apparent only. It would mislead the Occidental student
who did not realize that every important official act or
measure is in fact more or less controlled, indirectly, by

[ 151 ]

’ IL. Chinese Legal System

public opinion. The strike, the boycott, even the riot,
may become the extreme but normal indices of this
opinion. As a most experienced observer has summed it
up: “The Chinese are the most law-abiding people on the
face of the globe — but the laws by which they will abide
must be laws of which they approve.” In 1927, Mr. Ku
Hung-Ming, one of China’s “elder statesmen,” on being
asked about democracy for China, thus replied: “It has
been well said that the best form of democracy for China
is a despotism tempered with the rights of the people.”

6. Still another consequence of the general principle
is that the code of imperial laws (apart from the purely
administrative organization) is in form a penal code.
There is no formal distinction between criminal and civil
law; almost every chapter or section ends with a statement
of the penalty for its violation. All private ‘rights’ (as we
call them) have a public interest, in that their violation
may lead to brawling and injustice and public discontent,
and may therefore be repressed by penalties. This
principle rests on the still broader truth that there is no
distinct line between morality and law. If a rule has be-
come so settled and obvious that it has arrived at a place
in the code, it ought morally to be obeyed by all ; and the
few who may resist must naturally be coerced by a penal-
ty; they merit it.

6. Lena I Laws

It can be understood, from the foregoing traits, that
the general body of formal legislation does not play the
same part, in the legal system at large, as in the Occident.
The lalv was to be a ready instrument in the hands of
benevolent and experienced rulers. It might be ex-
panded or modified to suit a higher sense of equity. In
such a system of government one half of the success was
to depend upon the skill and justice of the individual
official, and the other half upon the detailed provisions of
the laws.

7. Nevertheless, it cannot be doubted that (as in
ancient Greece, where for different reasons an analogous
condition is found) the Chinese system was one of effective
law and order. All observers, since the earliest records,
describe the Chinese people as notably law-abiding and
peaceful. A Portuguese writer at Macao, about A. D.
1590, declared, “It is a world to see in what equability and
indifferency of justice all of the Chinese do live their lives,
and how orderly the public laws are administered”.
Sir George Staunton, the British diplomat who translated
the Code of Tsing, in pronouncing upon “some positive
moral and political advantages” of the Chinese con-
stitution, attributes these advantages “lastly, to a system
of penal laws, if not the most just and equitable, at least
the most comprehensive, uniform, and suited to the

[152]

[153]

IP. Chinese Legal System

genius of the people for whom it is designed, perhaps of
any that ever existed.”

That the dispensation of justice under this system, in
spite of its peculiarities, may merit comparison with other
systems in its methods and results, is amply testified to
by the verdict of foreign observers in all periods. 6 An
Arab traveler of A. D. 850, the first eye-witness to leave a

7. Prartiral Just ire

record, says dial llic ( 'liincsc "administer justice with
great si riel ness in all their tribunals.” A striking in-
stance is one chronicled by Perera, the Portuguese mer-
chant, Hn Macao about A. IX 1560. Perera’s party had
been mistaken for pirates; were arrested; resisted; and
sonic Chinese deaths resulted. The strangers were then
charged, first with piracy, and secondly with resisting
officers. But their true character was vindicated at the
trial; the officers who unjustly arrested them as pirates
were disgraced; and the individuals who had done the
killing were found guilty of homicide. Perera thus com-
ments on the kind of justice his party received: 41

[A Foreigner's Experience as Accused in a Chinese Court.] “I
shall have occasion to speake of a certaine order of gentlemen that
are called Louteas. I wil first therefore expound what this word

signifieth. Loutea is as much to say in our language 'Sir'

Such Louteas as doe serve their prince in weigh tie matters for

justice, are created after trial made of their learning

Now will I speake of the maner which the Chineans doe observe in
doing of justice, that it may be knowen how farre these Gentiles do
herein exceed many Christians, that be more bounden then they to

deale justly and in trueth In the principall Cities

of the shires be foure chiefe Louteas, before whom are brought all
matters of the inferiour Townes, throughout the whole Realme.

Divers other Louteas have the managing of justice

These Louteas do use great diligence in the apprehending of theeves,
so that it is a wonder to see a theefe escape away in any City, Towne
or yillage

M The Louteas observe moreover this: when any man is brought

[ 155 ]

IV. Chinese Legal System

before them to be examined, they aske him openly in the hearing of
as many as be present, be the offence never so great; thus did they
also behave themselves with us. For this cause amongst them can
there be no false witnesse, as dayly amongst us it falleth out. This
good commeth thereof, that many being alwayes about the Judge to
heare the evidence, aaid beare witnesse, the processe cannot be

falsified, as it happeneth sometimes with us Againe,

these Louteas, as great as they be, notwithstanding the multitude of
Notaries they have, not trusting any others, do write all great
processes and matters of importance themselves. Moreover one
vertue they have worthy of great praise, and that is, being men so
wel regarded and accompted as though they were princes, yet they
be patient above measure in giving audience. We poore strangers
brought before them might say what we would, as all to be lyes and
fallaces that they did write, ne did we stand before them with the
usuall ceremonies of that Countrey; yet did they beare with us so
patiently, that they caused us to wonder, knowing specially how
litle any advocate or Judge is wont in our Countrey to beare with
us. For wheresoever in any Towne of Christendome should be
accused unknowen men as we were, I know not what end the very
innocents' cause would have. But we, in a heathen Countrey, hav-
ing our great enemies two of the chiefest men in the whole Towne,
wanting an interpreter, ignorant of that Countrey language, did in
the end see our great adversaries cast into prison for our sake, and
deprived of their Offices and honour for not doing justice, — yea not
to escape death: for, as the rumour goeth, they shal be beheaded."

Names of able magistrates, like Pao Lung-Tu and
Lan Lu-Chow, have been handed down with reverence
for centuries in popular fame. And the Chinese trial
magistrate, at his best, developed a high degree of pro-
fessional skill — that skill which has always in the Orient
commanded the wonder and admiration of the multitude,

[ 156 ]

7. V radical Justice

a combination of intuition and cxpcn'icncc ill discrimi-
nating between -guilty and innocent without the aid of a
formal system of proof. Modern testimony to this is
borne* by an eminent British consular officer, the best
informed observer of Chinese justice: dd

"The singular keenness of the mandarins, as a body, in recog-
nizing the innocent and detecting the guilty (that is, when their
own avaricious interests are not involved) makes the contingency
| of a false confession under violence] so rare as to be almost un-
known. A good instance came under my own notice at Swatow in
IS7(i. For years a Chinese servant had been employed at the
foreign Custom House to carry a certain sum of money every week
(o the bank, and at length his honesty was above suspicion. On
the occasion to which I allude he had been sent as usual with the
bag of dollars, but after a short absence he rushed back with a
frightful gash on his right arm, evidently inflicted by a heavy
chopper^ and laying the bone bare. The money was gone. He
said he had been invited into a tea-house by a couple of soldiers
whom he could point out ; that they had tried to wrest the bag from
him, and that at length one of them seized a chopper and inflicted so
severe a wound on his arm, that in his agony he dropped the money,
and the soldiers made off with it. The latter were promptly ar-
rested and confronted with their accuser; but, with almost indecent
haste, the police magistrate dismissed the case against them, and
declared that he believed the man had made away with the money
and inflicted the wound on himself. And so it turned out to be,
under overwhelming evidence. This servant of proved fidelity had
given way to a rash hope of making a little money at the gaming
table; had hurried into one of these hells and lost everything in
three stakes ; had wounded himself on the right arm (he was a left-
handed man), and had concocted the story of the soldiers, all within
the space of about twenty-five minutes. When he saw that he was

[ 157 ]

I y. Chinese Legal System

8. Codes

detected, he confessed everything, without having received a single
blow of the bamboo; but up to the moment of his confession the
foreign feeling against that police-magistrate was undeniably
strong.”

(II) The Old Legal System

8. The dates of the earliest Chinese Codes or laws
are doubtful. The legendary history of China goes back
to B. C. 2500 or earlier; but the oldest textually trans-
mitted historical records date from about B. C. 1200.
Some beginnings of codes, now lost, are attributed to the
prior interval. But the earliest code whose text is now
extant is that of Chow, about B. C. 1100, said to have
been composed by Tan, duke of Chow, brother of the
founder of the Chow dynasty.

This code, known as Chow Li, or Regulations of Chow,
was sought to be extirpated by the great “Burning of the
Books", in B. C. 212. This was a holocaust, decreed by
an erratic ruler, who forbade all invocation of the con-
stituted customs of the past and thus aimed to free his
own notions of government from all conservative criti-
cism; “the only books which should be spared are those
on medicine, divination, and husbandry; whoever wants
to know the laws may go to the magistrates and learn of
them." But his expedient (unlike Justinian’s) was futile.
The Chow Li, with many other classics, was secretly
preserved ; its text was rescued and officially restored in

(he very next generation; and some of its principles have
doubtless continued as the basis of all intervening legis-
lation.

The Chinese earliest laws were recorded in a primitive
form of script; one of the earliest styles dates from per-
haps B. C. 2300, and was itself developed from a still

earlier pictograph (whence
a supposed primitive rela-
tionship between Egyp-
tians and Chinese); and
from that origin, by various
stages, the modern form
has evolved. 1 The material
originally used was bamboo
wood ; but stone was often
used for giving permanent
publicity to single decrees,
even into modern times.
Block printing did not
come till about A. D. 900.

After the Burning of
the Books, many vicissi-
tudes of codification en-
sued. The Tang dynasty,
for example, about A. D.

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IV. 7 — Evolution of the
Law Scripts

[ 158 ]

[ 159 ]

iy. Chinese Legal System

640, issued a code of some 500 articles. The Tartar
emperor Timur (grandson of Kublai Khan) about A.
D. 1320, promulgated a code of 2500 articles. But
none of the conquerors from the north attempted to alter
essentially the traditional laws and customs of the
Chinese. The great Tartar ruler, Kublai Khan (“In
Xanadu did Kubla Khan A stately pleasure-dome de-
cree”), who conquered China about A. D. 1260, founded
the Yuen dynasty, and established Peking as his capital
city, proclaimed that “the doctrine of Confucius was a
law destined to govern all generations, . ; . . and all

should conform strictly to its divine behests;

for the state’s laws are constant and invariable, and must
be obeyed as the rule of conduct for all.” The most
radical innovation attempted by the all-powerful and
broad-minded Kublai Khan was the introduction (A. D.
1269) of an alphabet, especially constructed on his order by
a Tibetan scholar, to supplant the multifarious Chinese
ideographs; and the very decree above, confirming the
traditional laws, was promulgated in this alphabet. 8 But
solid Chinese habit and thought was proof against even
this change; and after his death its use gradually lapsed.

In the ensuing (native) Ming dynasty, about A. D.
1400, the minister Yung Lo framed a new general code;
and on this code was founded that of the next (con-

[160]

IV. 8 — Kublai Khan's Decree, A. D. 1269

This conaueror confirmed the institutions of Confucius, but attempted in vain to introduce, by the same
decree, the use of an alphabet specially invented, to supplant the multifarious ideographs

IV. Chinese Legal System

quering) Manchu dynasty, the Tsing, some two cen-
turies later. This Ta Tsing Lu Li, or Code of Tsing, be-
came law about A. D. 1650, and endured until the revolu-
tion of A. D. 1912. »

This work consists, first of a code proper, called Lu,
the text of which never changed; and secondly, of the
annual edicts and judicial decisions, called Li, which in-
terpreted the Lu, made them flexible, and adapted them
to progress, — much like the function of Equity alongside
the Common Law. There were about four hundred and
fifty Lu sections, and (in the edition of 1907) about two
thousand Li sections. The page (reading downwards,
right to left) shows the Lu, or fixed constitution, printed
in the lower space; the judicial rulings are seen above; and
the Li, or annual modifications, are printed in the middle. 10
Every five or ten years a new edition was promulgated,
with these interpretations inserted cumulatively at the
code sections, thus bringing the system up-to-date, —
a method not unlike the one followed in imperial Russia
since 1860, and now, in part, in Wisconsin.

The following passages of the Lu, on the law of Adop-
tion, illustrate the style of this code:®

[Code Provisions on Adoption .] “Whoever appoints his heir
and representative unlawfully, shall be punished with 80 blows. —
When the first wife has completed her fiftieth year, and has no
children living, it is allowed to appoint the eldest son by the other

[ 162 ]

IV. 9 — Ta Tsing Lu Li (Code of Tsing), A. D. 1650
This code, shown in its title-page, endured till the revolu-
tion of A. D. 1912

[163]

IV. 10 — Code of Tsing (Interior Page)

The Lu, or original fixed laws, are printed in the lower space; the Li, or
annual modifications, are in the middle; and the judicial rulings are
above. The text reads downward, right to left, in each division

[ 164 ]

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“If a person, not having sons himself, educates and adopts the
son of a kinsman, having; other sons, but afterwards dismisses such
adopted son, such person shall be punished with 100 blows, and the
son shall be sent back to, and supported, as before, by the adopting
parents.

“Nevertheless, if the adopting parents shall have subsequently
had other sons, and the natural parents, having no other, are de-
sirous of receiving their son back again, they shall be at liberty so
to do.

“Whoever asks for, and receives into his house as his adopted
son, a person of a different family name, is guilty of confounding
family distinctions, and shall therefore be punished with 60 blows;
the son so adopted shall, in such cases, always be returned to his
family. — In like manner, whoever gives away his son to be adopted
into a family of a different name, shall suffer the punishment de-
creed by this law, and receive such son back again. Nevertheless,
it shall be lawful to adopt a foundling under three years of age, and
to give the child the name of the family into which it is adopted ;
but such adopted child shall not be entitled to the inheritance upon
failure of the children of blood.

“If the relative appointed to the inheritance, on failure of
children, is not the eldest in succession, it shall be deemed a breach
of this law; the relative so appointed shall be sent back to his place
in his own family, and the lawful heir appointed in his stead.”

The following passage, from the law of Mortgage,
illustrates the way in which the Li (or annotations)
served to apply, interpret, and modify the Lu (or fixed
text). f

[165]

IF. Chinese Legal System

First comes the Lu :

‘‘[1] Whoever takes lands or tenements by way of mortgage,
without entering into a regular contract, duly authenticated and
assessed with the legal duty by the proper magistrate, shall receive
50 blows, and forfeit to government half the consideration money
of the mortgage.

“[2] If the mortgagor does not transfer to the mortgagee un-
reservedly the whole produce of the land upon which the taxes are
charged and made payable to government, he shall be punished in
proportion to the extent of the property, in the following manner:
if from one to five meu, with 40 blows, and one degree more severely
for each five additional meu, until the punishment amounts to 100
blows; the land so illegally mortgaged shall be forfeited to govern-
ment.

“[3] If the proprietor of lands and tenements already mort-
gaged attempts to raise money thereon by a second mortgage, the
amount obtained upon such false pretences shall be ascertained, and
the offender punished accordingly, as in the case of an ordinary
theft, to the same extent, except that he shall not be liable to be
branded.

“The pecuniary consideration received by the fraudulent
mortgagor shall be restored always to the mortgagee, unless such
mortgagee is himself privy to the unlawfulness of the transaction, in
which case it shall be forfeited to government. The said mortgagee
and the negotiator of the bargain, when either of them is acquainted
with the unlawfulness of the transaction, shall moreover receive
the same punishment as the mortgagor. In all such cases, the first
and lawful mortgagee shall remain in possession.

“[4] If, after the period specified in the deed by which any
lands or tenements are professed to be mortgaged or pledged by the
proprietor, is expired, the said proprietor offers to redeem his
property by the payment back of the original consideration upon

[ 166 ]

H. Codes

which lie had parted with il, il shall nol lie allowed the mortgagee
lo refuse to comply ; any instance of such refusal shall subject him
-to iftr punishment of -It) blows, and to the forfeiture of all the
produce of the land which he may have reaped after the expiration of
such period. Nevertheless, this law shall only have effect when the
proprietor is really able at the expiration of the prescribed period to
redeem his lands, and not otherwise.”

Next comes the Li (or, annotations), and here we show
a part of the Li of 1799 and the Li of 1907 in comparison; 8
(hey both deal with paragraph 4 only of the above text,
on the mortgagor’s right to redeem or receive the surplus
value. (It will be remembered that, in the evolution of
mortgage law in every system* 1 the early stage entitles the
mortgagee on default at the time appointed, to keep the
entire property pledged, no matter how excessive its value;
while in the later stages (here represented in the Chinese
rules) the law compels the mortgagee to restore to the
mortgagor the excess over the amount of the original
loan) ;

[Edition of 1799.] “When it [Edition of 1907.] “Amend-
is expressly declared in the ing Edict of year 6, Emperor
preamble of a deed of sale, that Chia-Tsing [1801]. If the deed
(he land is sold absolutely, and is a sale absolute in form, with-
not by way of pledge or mort- out any clause for redemption,
gage, and there is no subjoined the original owner is forbidden
clause providing for the con- to make any claim at a subse-
lingency of a further payment to quent time for redemption ; such
the seller, as a consideration for a claim shall subject him to
his making the sale absolute at a punishment. And if the owner

[ 167 ]

IV. Chinese Legal System

subsequent period; such a deed
of sale shall be an effectual bar
against all claims whatsoever of
redemption. But if the sale is
not expressly declared to be
absolute, or if there is a general
clause of redemption, or a spe-
cific one of redemption at any
time after the expiration of a
certain period, the original pro-
prietor shall, according to the
terms of the agreement, be en-
titled to recover his land, upon
repayment of the consideration
for which it was pledged or
mortgaged. If the original pro-
prietor, at the end of the period
specified in the contract, is still
unable to discharge the mort-
gage, it shall be at his option,
either to retain his right to a
recovery of his land, at any
future period, or to surrender it,
and make the sale absolute, in
consideration of a receipt of a
further sum to be agreed upon
between him and the mort-
gagee, or between arbitrators
duly appointed by the parties.
If they cannot agree upon the
terms, the mortgagee shall have
the option of either continuing
in possession, or of re-imbursing
himself, by re-mortgaging the

of land sold with a clause for re-
demption makes claim for re-
demption before the time stipu-
lated in the deed, he shall be
subject to punishment.”

Judicial Ruling [undated].
“The maximum period for land
sold on mortgage shall be 10
years. If the period specified in
the deed exceeds this limit of 10
years, the clause is of no effect,
and the parties privy to it are
punishable.”

V. Conveyancing

l.md !o sonic oilier person, (lie
light of redemption remaining
'as 'before with the actual pro-
prietor.

“It is however declared that
all deeds of sale which are
doubtful, or imperfect, owing to
the tenor of the preamble, but
which .contain no clause of re-
demption, shall, if not ques-
tioned or objected to for thirty
years from the date thereof,
become to all intents and pur-
poses absolute.”

9. Two documents from the 1870’s, under the fore-
going chapter of the code, will illustrate the degree of
skill developed in the conveyancing of Chinese land. 1
It may be noted that a Chinese deed can be executed with
the same expedient as our own “indenture”, i. e. the
grantor signs an original and the grantee a counterpart,
and then the word “contract”, or the like, is written in
large characters so that one half appears on one document,
the other half on the other. The following documents are
the grantor’s originals of a mortgage, consisting first of a
deed of sale with condition subsequent for re-purchase,
and next, after several years, of a release:

[. Mortgage-Deed and Release .] Original Mortgage . “I, Tsien
Yi, and my younger brother, Ping, signers of this original mortgage
of land and house, finding ourselves in need of money for an honor-

[168]

[169]

II'. Chinese l \,egal System

able purpose, and having employed as brokers Doe and Roe for the
purpose of arranging terms, are on due reflection fully decided to
deliver in mortgage to the church known as Chong- Yi, as a property
for the common use of the Catholic Mission in this country, for the

sum of ....... ounces of pure silver weighing , the current

rate for mortgage transactions, the house and land hereinafter
described, which were devised to us by our forefathers. (1.) The

house includes: (a) a dwelling of stories and rooms

from top to bottom; (b) a second dwelling formed by the large

reception room and adjacent rooms, rooms in all; (c) wings,

in stories, east and west, having the two said dwellings between

them, and numbering ...rooms; (d) a small service-building,

of rooms, behind the east wing; (e) a flower garden behind

the service-house, in which is a summer-house, in stories, and a

garden-house, in all rooms; (f) and lastly another building,

one storied, rooms. Total number of rooms, , in-

cluding large and small, and upper and lower stories. Walls to the
estate, doors and windows, the partitions (both wood and brick),
rockeries, stone garden-steps, trees and flowers, bamboo groves,
kitchen, wells, latrines, all the aforesaid are complete; we are to
prepare in duplicate a list of these appurtenances. (2.) The
premises of the said house and garden, with an additional plot be-
longing thereto, include acres and tenths of an acre,

and are located in the district of at the street and bounds

as described hereinafter.

“(3.) The money has been paid and the deeds delivered at the
same time, without any reservation of amounts to pay charges
thereon. It is agreed that no interest will be payable on the money
received, nor rent payable on the premises; that the term of tenure
shall be nine years; that during that period the new owner may
deliver the said premises in mortgage to another person for the
same amount ; that, on the expiration of this period I may buy back
my property on repayment of the same amount; that if at that time

[ 170 ]

0. Conveyancing

I have nol ihe money, I nmnol oblige the new owner to pay the
excess value .and accept a complete and final title.

“( I.) - The said land and house are hereby declared to be
owned by us, and no relative, whether ascendant or descendant, has
any claim to it; nor has there been any sale to other persons; if any
claim to the contrary shall be made, it will be settled by us, we
holding harmless the new owner. (5.) From the date of this deed,
the new owner shall enjoy the property, either by living on it him-
self or by leasing it to others for hire.

"The foregoing is agreed to by both parties, and neither has any
oilier terms to make. For future proof of the transaction we have
executed this original mortgage of the land and house in testimony
I hereof.

"In particular:

"The house, facing the south, is located on the north side of

street, in the county , town , ward

The four bounds are: on the east, to the middle of the alley; on the

south, to the street; on the west, to the land of — , and, on the

north, to the middle of the canal.

"The government approval of the deed to the grantor, and the
official certificate of title [see post ], of the said land, as well as all
preceding deeds of the prior owner, having been lost through a
series of family misfortunes, in place thereof the ‘substitute deed’

[see post] issued by the magistrate at our request, as well as

stamped receipts for taxes of prior years, have been delivered to the
new owner.

"It is agreed between the parties that the new owner shall make
all repairs of gutters and other minor repairs; but that if timbers by
rotting break, or if either walls or partitions give way, the new
owner shall advance the cost of the needed repairs, the reasonable
amount to be later determined by arbitration, and to be entered
plainly on the mortgage deed, for reimbursement by the original

[ 171 ]

IF . Chinese lx gal System

owner in case of re-purcliase of the properly. It is also agreed I ha I
the new owner may in his discretion add to or change the decora-
tions, but that at the time of re-purchase he shall restore the house
to its original condition.

“Year of the emperor Koang-shu, month , day

, I Tsien Yi, and my younger brother, Ping, have executed

this original mortgage of house and land. [Then the signatures of
the brokers, the head of the clan, and the notary. On the last line,
a declaration that the grantors confirm the contract. Then the
half of the characters forming the indenture.]

[Release.] “I, Tsien Yi, and my younger brother, Ping, signers

of this irrevocable sale, having already, through the brokers

and , in year of the Emperor Koang-shu, transferred

in mortgage, for the sum of ounces silver received in hand,

to the church known as Chong-Yi, as a property for the common
use of the Catholic Mission in this country, a house situated in the

district of , on street, in the county, town, and ward

hereinafter mentioned, having in all rooms, upper and lower

stories included, together with the premises of the said house, the
flower garden, and a piece of ground adjacent, measuring in all
acres of land, being a property inherited from our fore-
fathers; And having afterwards, in year , received a supple-
mentary amount of ounces silver, and in both cases having

executed deeds to the new proprietor [the second document of the
series is here omitted] : Now therefore, finding ourselves in need of
money for a pressing purpose, we have again requested the brokers
to arrange the terms of a final irrevocable sale of the house and land

aforesaid, which we have decided to make, for the sum of

ounces of pure silver, full weight of , the actual amount of the

final irrevocable sale, fixed upon reflection. The full exchange of
money and deeds has been made at the same time on the date of
this instrument, no other receipt having been given by us. We
have also delivered to the new owner the counterpart of the original

0. Conveynm inn

morigugc-dccd ami I Ik* detailed inventory of ornaments and repairs
of the house received from him al I lie lime of the original contract.
I Tom and alter 1 he dale of this final irrevocable sale of this property,
il shall no longer be lawful for us to claim either the right of re-
purchase or any further supplementary amount; the new owner, on
his part, will at such time as he sees fit register the transfer of title
and pay the lax; he shall have the right to demolish and rebuild the
house; in short, lie shall be the absolute owner. The said land and
house are hereby declared to be owned by us, and no relative,
whether ascendant or descendant, has any claim to it; nor has there
been any mortgage or sale to other persons, nor any reservation of
any part of the price of this sale to discharge debts, or the like. If
any claim to the contrary shall be made, it will be settled by us, we
holding harmless the new owner. This is our free act, and we have
no other terms to make. Fur future proof, we have executed this
final irrevocable sale of the land and house in testimony thereof.

“In particular:

“The premises of the house, facing the south, are situated on

the north side of street, in the county , town ,

ward The four bounds are plainly described in the original

deed. Upon delivery of this instrument to the new owner, we have

received from him ounces of silver, in full payment of this

irrevocable sale.

“In year of the Emperor Koang-shu, month ,

day , I Tsien Yi, and my younger brother, Tsien Ping, have

executed this instrument of irrevocable sale of land and house.
[Etc. as before.]’ ’

It would be a mistake to suppose that the great age
and apparent conservatism of the Chinese system are in-
consistent with change and timely progress; their decen-
nial re-edition of the code would disprove this. And an-

IV. 'Chinese -Legal System

other example is seen in the fact that the Torrens method
of registering title to land (instead of merely recording
deeds), though new among us, has been in force in China
for at least 150 years. Every Chinese land-owner has his
official certificate of title, which is indisputable. 11

At the records, office an entry of the land is made at
the time of first issuing the certificate. When a piece of
land is sold, the certificate of title is delivered to the new
proprietor, and at the foot of the contract is noted the
delivery of the certificate; thus the same certificate passes
from hand to hand, with the transfers of the plot of land.
A party selling only a small part of the land covered by
this certificate does not deliver the certificate to the
buyer, but executes a deed termed “supplementary
deed” or “partition deed”; on the certificate is noted,
with an attestation clause, the vendee’s name, the date,
and the description of the portion sold ; and on the deed
of sale is noted why the vendor, who keeps the certificate,
has executed only a bill of sale. But if the sale covers
more than half of the original plot, the vendor must de-
liver over his certificate, and then it is the buyer who
executes a “supplementary deed”, and at the foot of the
certificate is added a clause describing what portion of the
land is retained by the vendor. The deed itself in such
cases is merely an extra precaution; the partition must be

[ 174 ]

IV. 11 — Certificate of Land-Title, about A. D. 1850
This certificate passes from hand to hand, with transfers of
the plot of land, and is indisputable

[ 175 ]

IV. Chinese Legal System

duly noted on the certificate, or else the title of the holder
remains absolute and* complete. In case of loss or de-
struction of the original certificate, a new original is not
issued; but, after certain proceedings had, a “substitute
deed” is used, which passes from hand to hand like the
original certificate.

The following form of official certificate of title was
issued for Shanghai land in the 1850’s: j

[Certificate of Title,] "We the secretary of the treasury of the
province of Kiang-su deliver these presents as a certificate of title
required by law. . . [Then follows a brief recital of the history
and purport of the law.] We have received from the owner named
below a petition that the plot below described be recorded with the
lands subject to tax; the local magistrates have investigated the
petition and the land described; they have recorded it, and have
sent us a final report thereon; we have reported this to the governor
of the province, who has answered consenting to classify the land in
question, and to begin to receive taxes thereon. Wherefore, we are
authorized to deliver to the farmer this certificate. This document
is given in proof thereof.

“Entries to be made:

“The farmer , in the district , has filed a

petition declaring that he desires to validate acres and

parts of an acre of land. The plot will pay tax at the rate

of bushels of rice per acre, and will begin to pay from year

- The boundaries of the plot are: on the east to , on

the west to , on the south to.. , on the north to

Done in the year of the Emperor Hien-fong, month,

day.”

10. (Joint Procedure

10. The procedure of the trial courts, at the end of
(lie iriOO's, has been graphically summarized in the
observations of some Spanish missionaries. Their ac-
count shows candid admiration for the methods of Chinese
courts: k

“The king doth pay the judges all sufficient wages, for that it
is forbidden upon great penalties to take bribes or any other thing of
any clyent. Likewise the judges be straightly charged and com-
manded (and that is one of the chiefest articles that is given them
from the council), not to consent to be visited of any clyents in their
houses. Neither can they pronounce any sentence but in the place
of publike audience, and in the presence of all the officers, and it must
be done in such sort that all men that are in the place of audience
may heare it, and is doone in this sort following:

“The judge doth set himselfe in the seate of justice, then do the
porters put themselves at the entring or doores of the hall, who do
name with a lowde and high voice the person that doth enter in to
demand justice, and the effect of that he doth aske. Then the
plaintife doth kneele downe somewhat a far off from the judge, and
doth with a loud voice declare his griefe or demand, or else in
writing. If it be in writing, then one of the scriveners or notaries
doth take the petition and doth read it, the which being understood
by the judge, he doth straightwaies provide upon the same that
which is agreeable unto justice, and doth firme the petition with his
own firme with red inke, and commandeth what is needful to be

done These matters being executed in publike

(which is marvelously observed and kept), it is not possible that any
of the officers should take any bribes, but it must be discovered by
one of them; and for that they are used with great rigour in their
residence, everie one is afraid of his companion, and are one to an
other (in this case) great enemies

[ 176 ]

[ 177 ]

IV. Chinese Legal System

"In all matters of lawe, as civill as criminall, the judges do
nothing but by writing, And do pronounce the sentences, and ex-
amine witnesses in publike, before all the rest of the officers, because
no subtilty nor falshood shall be used in their demaundes, neither in
their writings, to set downe other then the truth. Everie witnesse
is examined by himselfe, and if he do double in his declaration, then
do they joyne together and make their demaunde from one to an
other, til by their striving they may come to a better knowledge of
the truth. But when by these meanes they cannot bring it to light,
then doo they give them torments to make them confesse, be-
leeving that without it such persons as have experience and knowl-
edge will tell the truth.

"In matters of great importance, and such as doo touche grave
personages, the judge will not trust the scrivener or notarie to write
any information; but they with their owne handes will write the
declaration of any witnesse, and will consider verie much of that
which is declared. This great diligence is the occasion that fewe
times there is any that doth complaine of any ill justice doone; the
which is a great and notable vertue, and ought to be imitated of all
good justices, for to avoyd many inconveniences which doo happen
for the not using the same, the which these Gentiles have great care
to performe.”

11. There were no lawyers (as we understand the
term) in the Chinese system. There were notaries, and
brokers who acted as attorneys; but no licensed profes-
sional class, either of advocates or of jurisconsults, as at
Rome. But well-informed observers tell us that all
Chinese are fairly well acquainted with both the custom-
ary and the statute law, owing to the fidelity with which
the laws reflect the common usage. And the local magis-

[ 178 ]

1 1 . - I f)fu ll<itc Justin'

lilies justice, when In* was in doubt, could be reviewed
in nu elaborate system of appeals, -from district to
province, and (lienee to the capital at Peking.

'There sal (lie Supreme Court, in the Imperial palace-
city; and this body of men, learned in the law, revised the
lower court rulings. The opinions show as keen and
logical distinctions as those of any court in the Occident,
hroin time to time, collections of leading decisions of the
Supreme Court, 12 were published and studied as prec-
edents, — in Chinese words, Hsing An Hui Lau. Every
magistrate had to possess a copy of this book. Here are a
lew illustrative decisions from the last century; 1

[Supreme Court Decisions .] Lee's Case: "Seventh year of the
Emperor Tao Kwang [1827]. One Lee Szu, being the nearest
relative of Mrs. Lee, a widow, had been adopted as the son of Mrs.
Lee, forty years ago. Afterwards, Lee Szu was convicted of man-
slaughter and sentenced to be banished accordingly.

"Mrs. Lee appealed for pardon upon the ground that Lee Szu
was her only heir, so that his banishment would have left her with-
out a legal heir. It also appeared that she was very old, about 71
years of age.

"[Held] It has been the general law of this country that the
adoption, as son, of a person not having the same family name as
the adopting party, is absolutely illegal.* The adopting party is
subject to criminal punishment, and the adopted party must return
to his original family. And further, if there is no direct issue of the
body, the nearest relative having the same family name is. entitled

*[This law has been quoted ante, in the text. par. (4) of the passage on Adoption. For

the reason of this rule, see the book of Wilkinson, cited Post . J

[ 179 ]

IV. 12 — A Page from a Volume of Supreme Court Decisions

[ 180 ]

11. Appellate Justice

In I u* inslitiitod as heir. In I In* pivscnl rase, l,ec Szu was the only
relative having (he same family name of Mrs. Lee. [Hence no other
person could be lawfully adopted by her.] So therefore, to banish
Lee Szu would tend to put Mrs. Lee, in view of her old age, in an
extremely grievous and deplorable condition.

“Pardon is granted.”

Wong v. Kwa . "Tenth year of the Emperor Tao Kwang [1830].
Mr. Wong contracted with Miss Kwa to marry. Subsequently,
Mr. Wong departed the country to Harmi, to carry on business
there, and did not return to his hometown until about ten years
Inter. In the seventh year of Wong’s absence, Miss Kwa, with
knowledge that Wong was in Harmi, married a third person, in
spite of the contract to marry with Wong. Mr. Wong, returning
home after the said marriage, demands the specific performance of
his contract of marriage.

"[Held] Specific performance is granted, upon the ground that
the marriage with a third person was void because of bad faith, even
i hough the marriage has been consummated and a son been born to
her. As a general rule, a continued absence for three years, without
being heard of, may raise a presumption that the absent party is
actually dead, and in such case a girl [under contract to marry the
absentee] may lawfully be married to a third person, upon getting a
license from the magistrate, as if she were never engaged. But the
present case is not within this rule; for though Wong was absent for
nine or ten years, yet his whereabouts was known to the other party.

"Specific performance is decreed.”

There were special series of (what we should call)
criminal decisions; and a favorite type of book for popular
reading was a collection of famous cases, like our col-
lections of “causes celebres”, common in Europe in the

[ 181 ]

II . Chinese / *eual System

last century. The following reix>rl. of a homicide case of a
century ago illustrates the method of investigation and
the process of appeal, as well as the principle of law in-
volved; the original is a communication (dated 1808)
from the Mayor of the port of Canton, transmitting to the
Chinese Merchants’ Guild a copy of the Supreme Court’s
decision : m

[Record of a Homicide Appeal.] [Mayor’s Letter.] “I have
received information from His Excellency the viceroy to the follow-
ing effect :

[Viceroy s Letter.] “On the 26th of the first moon of the 13th
year of Kia King, I received the following dispatch from the Su-
preme Criminal Tribunal at Pekin, relating to a case that had been
tried in this province:

[Supreme Court’s Opinion .] “A decision having taken place
upon a case which we had laid before his Imperial Majesty for
ratification, it is now fit and necessary that we should communicate
the same to your excellency, as viceroy of Kwang-Tung and Kwang-
See, to the end that the same may be duly carried into effect under
your excellency’s direction.

“His Majesty’s Inner Council having, in the first instance,
issued a transcript of the report of the viceroy of Kwang-Tung and
Kwang-See, stating his investigation of the case of a foreigner,
Edward Sheen, opening a window-shutter in an upper story, and
dropping a stick so as to hit and occasion the death of Leao-a-teng,
a native of this empire; His Majesty was pleased on the 8th of the
11th moon of the 12th year, to direct that our tribunal should revise
the same and pronounce judgment thereon.— In obedience to
orders, we accordingly, on the 10th day of the moon, took the said
transcript into consideration ; and we found that the viceroy’s report

[ 182 ]

II. . tptn'Udte Justice

was grounded, in the first installer, on .1 report of the magistrate of
Nan-liay-Sien, a dislrirl nf (’anion, which was to (he following
effect :

| Magistrate' s Rcport.\ “On the IXth day of the first moon of the
present year, ixao-a-teug, a native of the district Pun-yu-Sien, went
with his wife's brother Chao-a-Sse, to buy goods in a street within
the said district, called She-san-hang, and happened to pass along
the stone pavement under a warehouse called Fung-tay-hong. At
t lie same time an Englishman named Edward Sheen, who was in the
upper story of the said warehouse, in attempting to open the win-
dow, slipped his hand and dropped a stick, which, Leao-a-teng not
expecting, could not avoid, and was therefore struck therewith on
the left temple, so that he fell to the ground. Chao-a-Sse ac-
quainted Leao-a-lun, the brother of Leao-a-teng, with the accident,
who being thus informed of the particulars thereof, came and as-
sisted the said Leao-a-teng to return to his home, and procured him
medical assistance, which however had no effect, and the wounded
man expired on the evening of the following day, the 19th of the
moon. The brother of the deceased then reported the case to the
head-man of the district; and by him, information was laid at the
tribunal of Nan-hay-Sien, where the witnesses of the fact having
been, in consequence, assembled and examined, the chief of the
said [English] nation was called upon to deliver up the said criminal
Edward Sheen, for examination and trial.”

[Supreme Court Opinion , resumed.] “The viceroy proceeded
to state, that repeated orders were, in consequence, issued to the
Hong merchants on the subject, and through them to the chief of
the said nation; in reply to which it was alleged, that the said
criminal was sick of an ague and fever, and undergoing medical
treatment for his recovery: at length, after repeated applications, it
was reported that he had recovered from his sickness, whereupon
the magistrates of the district confronted the criminal with the
relations of the deceased, and having finished the investigation in

[ 188 ]

IV. Chinese Legal System

due form, referred the consideration of the proceedings to the chid
judge, by whom the same process was renewed, and the result
finally transmitted to the vice-regal office. His excellency having
concluded the enquiry, by personally and strictly examining into
the affair himself, ascertained that:

[ Viceroy's Report , quoted.] "Edward Sheen is a native of
England, engaged for hire to perform the duty of a seaman, on
board the ship of Captain Buchanan, a merchant of the same
nation. The said ship having been laden with a cargo of goods for
trade, in the said kingdom of England, had arrived at the port of
Canton and anchored in the reach of Whampoa, in the course of the
12th moon of the 11th year of Kia-King, after which the cargo was
landed, and deposited in a warehouse or factory called Fung-tay-
hong in the suburbs of the city of Canton. Edward Sheen had
immediately thereupon accompanied Captain Buchanan and
others to the upper story of the said warehouse or factory, in order
to dwell therein, until, the returning cargo having been received, the
period of departure should arrive. This upper story was also con-
tiguous to and overlooked the street and path-way, towards which
window was opened with moveable shutters. It happened also,
that Leao-a-teng, a native of China, accompanied by his wife's
brother Chao-a-Sse, went to the street called She-san-hong, to buy
goods; and passing at the same moment under the said upper
story, was struck and wounded by the end of the stick falling, as
aforesaid, upon his left temple; and he thereupon fell to the ground.
Chao-a-Sse acquainted Leao-a-lun, the brother of Leao-a-teng, with
the accident, who, upon being informed thereof, immediately came
and assisted Leao-a-teng to return to his home; and afterwards
procured him medical assistance; all which, however, proved of no
avail; and the wounded man died on the evening of the following
day, the 19th of the moon. Now, the aforesaid criminal, Edward
Sheen, having been repeatedly examined, has acknowledged the
truth of all the facts here stated, without any reservation. — Con-

[ 184 ]

11. A f>f>ell(ite Justice

srqurnlly, in (his rase, l here is no appeal against the conviction of
this offender, Edward Sheen ; who, having been proved guilty of
accidental homicide, may be sentenced to pay the usual fine, to
redeem himself from the punishment of death by strangulation."

| Supreme Court Opinion , resumed.] "The foregoing being the
substance of the report of the viceroy to his Imperial Majesty, we
have deliberated thereon, and have ascertained that, according to
the preliminary book of the penal code, all persons from foreign
parts, committing offences, shall undergo trial and receive sentence
according to the laws of the empire. Moreover, we find it de-
clared in the same code, that any person, accidentally killing an-
other, shall be allowed to redeem himself from punishment, by the
payment of a fine. Lastly, we find, that in the 8th year of Kien-
Lung [1743] it was ordered, in reply to the address of the viceroy of
('an ton then in office, that thenceforward, in all cases of offences by
contrivance, design, or in affrays happening between foreigners and
natives, whereby such foreigners are liable, according to law, to
suffer death by being strangled or beheaded, the magistrate of the
district shall receive the proofs and evidence thereof, at the period
of the preliminary investigation, and after having fully and dis-
tinctly inquired into the reality of the circumstances, report the re-
sult to the viceroy and sub-viceroy, who are thereupon strictly to
repeat and revise the investigation. If the determination of the
inferior courts, upon the alleged facts, and upon the application
of the laws, is found to have been just and accurate, the magistrate
of the district shall lastly receive orders to proceed, in conjunction
with the chief of the nation, to take the offender to execution, ac-
cording to his sentence. In all other instances of offences com-
mitted under what the laws declare to be palliating circumstances,
and which are therefore not capitally punishable, the offender shall
be sent away to be punished by his countrymen in his own country.

"The case of the Englishman, Edward Sheen, opening a window-
shutter in an upper story, and the wooden stick which supported it

[ 185 ]

!E. Chinese Legal System

slipping and falling down so as accidentally to hit Leao-a-leng, a
native who was passing by, and by striking him to occasion his
death, appears to be, in truth, one of those acts, of the consequences
of which neither sight, hearing or reflection could have given a
previous warning; there was therefore, no intention to injure, and
the case is evidently agreeable to the construction stated in the
commentary upon the law of accidental homicide. The said
Edward Sheen ought therefore, conformably to the provisional
sentence submitted by the viceroy to his Majesty, to be allowed to
redeem himself from the punishment of death by strangulation
[to which he would otherwise have been liable, by the law against
homicide by blows], by the payment of a fine of 12 leang 4 sen and^2
lee [about 4l£. 3s. sterling], to the relations of the deceased, to
defray the expenses of burial ; and then be dismissed to be dealt with
in an orderly manner in his own country.

“We thus respectfully laid before his Imperial Majesty, our
deliberate judgment upon this case, with the considerations where-
upon it is founded, and humbly solicited a declaration of his Majes-
ty’s pleasure regarding the same.

“On the 17th day of the 10th moon of the 12th year [January
1808] the address was laid before his Majesty, and received his
Majesty’s answer in these words: ‘We ratify your judgment.’

[Viceroy's Letter, resumed.] “The above communication of the
Supreme Criminal Court, having reached the vice-regal office, I, in
the first instance, directed the provincial judge to attend to the
strict execution of the Imperial decree, by forthwith taking the said
Edward Sheen and delivering him to the chief of his nation, in order
to his being sent back to be governed in an orderly manner in his
own country; the usual fine being at the same time duly recovered,
for the re-imbursement of the relatives of the deceased for the
expenses of his interment: the exact time of dismission of the said
foreigner, and of the reimbursement of the said relatives, are to be
duly ascertained and reported to me; but I think fit, moreover, to

Use]

12. I mw- H ooks and Edicts

communicate I hose tilings to your excellency, that you likewise may
co-operate in attending to the due execution thereof.”

\ Mayor's Letter , resumed. | “His excellency the viceroy’s com-
munication having been transmitted to me, as Mayor, at my office,
I determine to make it known to you also, Hong merchants, that
you may, agreeably to these my orders, attend to the due execution
of all things therein required. May you respectfully conform to
these orders.

“The 7th of the 2d moon of the 13th year of the Emperor Kia-
King [February, 1808].”

12. A Chinese law-book was usually printed in
several paper-bound booklets, 18 and six or eight such

IV. 13 — A Group of Law-Books

A law-book was usually printed in several paper-bound booklets, and six or
eight were placed together between board covers tied with a clasp or cord

[ 187 ]

/ C . Chinese L.e%dl System

booklets were placed together in board covers tied with a
clasp or cord. Numerous practice books were compiled,
for the guidance of the trial judges; one of the most
popular, called “Official Practice of the Ching Dynasty”,
or Ta Ching Hui Tien Tse Li, served as the magistrate’s
“vade mecum”, much as Burn’s Treatise on the Justice of
the Peace used to serve in England two centuries ago.

The various decrees of the Emperor, n as they were
issued, were published in small oblong separate leaflets,
about eight inches long and three inches wide, under the
name of Ching Pao, or Official Gazette, and these served
somewhat like our session laws. In outward appearance,
they are trivial ; but the interior pages reveal how copious
a pronouncement can be made in small compass in the
concise Chinese language. The following decrees of the
year 1905 will serve as samples of the scope and style:"
The first is a judicial rescript (as used by the Roman
emperors) replying to a request for instruction of law on a
particular case (and the point is just such a one as might
arise under our own law) ; the second is a legislative edict,
instituting reforms in the prison system:

[Rescript to a Magistrate on a Point of Law.] Kwang Szi
[emperor], 31st year, 5th month, 27th day. [1905]. “The governor
of Kwangsi Province, Lee Yi Jing, herein petitions his majesty, the
Emperor Kwang Szi, for further review of three murder cases:
During the third month of the thirty-first year of the Emperor

[ 188 ]

12. Law- Hooks and Edicts

kwang Szi | 11)05] three murder eases, namely Lao’s ease, Vao’s ease
and Wong's ease, were reported to the said governor for confirma-
tion, from the Districts of Lon Shell, Yang Zo, and Shing An re-
spectively. Lao and Vao had been duly tried and convicted of
murder, therefore they ought to be hanged, according to the law.

IV. 14 — Official Gazette

It consisted of small oblong separate leaflets, not durable
in material or binding

[ 189 ]

/A'. Chinese Legal System

Wong also had been convicted of murder, but in this case the ('barge
was more serious than the first two cases, because lie feloniously
killed his cousin, a person with his own family name. According to
the precedents Wong should be punished by beheading, not hang-
ing. But on the twentieth day of the third month, thirty-first year
of Emperor Kwang Szi [1905], an edict was issued [subsequent to
the date of Wong's offence], providing that thereafter all person^
sentenced to capital punishment should be hanged instead of being
beheaded. Wherefore the said governor proposes and prays that
all three above convicted persons, Lao, Vao, and Wong, be hanged
accordingly [the edict changing the punishment being thus made
applicable to Wong’s case].” “Approved: Kwang-Szi .”

[Edict Reforming the Prison System.] Kwang-Szi, 31st year,
9th month, 5th day [1905]. “A proposal for improving the prisons
and for a method of raising funds to give effect to the new plan,
made by the administrative department of the government, is here-
with brought up to the Emperor Kwang Szi for review.

“According to the policy of western nations both of Europe and
America with respect to the management of prisons, great care is
taken not only as to the proper size of the rooms, and sufficiency of
light and air, but also as to adequate provision of food for the
prisoners. In short, hygiene is the first important thing which they
take into consideration. This purpose is virtually identical with
our ancient ideals. Unfortunately, however, at the present time,
due to the gross negligence of those who have been entrusted with
the duty, the rooms in the penitentiary are too small for the large
numbers of prisoners and have insufficient light and air. Moreover,
the food provided for prisoners is supplied with no regard for clean-
liness or for nutrition. The prisoners have been treated no better
than animals. It is indeed inhuman and infamous on the part of
those by whose fault the prisoners have thus been suffering. There-
fore, there must of necessity be a reform of these old, prisons without
delay. New prisons should be built on modern designs, with rooms

[ 190 ]

12. Law- Hooks and lulirts

ill suitable size, sufficiently supplied willi light and air; and the
victualing must be managed by definite regulations. The same
improvements should also be adopted in the reformatories.

“Next, attention must be given to the ways and means of
carrying out this new plan. It would be advisable for the provinces
ol Kiangsu, Kiangsi, and Anhui to experiment first and then to use
l heir results as the model for the rest of the Provinces. As to funds,
a new tax may be imposed for that purpose. Additional contribu-
tions may be secured by each province in its own way, as it sees fit.
Prizes and rewards would be given to those citizens who would de-
vote special zeal to the campaign for contributions. Further, great
honor would be awarded to those magistrates who would put into
operation the new plan with the greatest success. The period for
executing this new plan may be limited to one year for prisons and
two years for reformatories. The above measures are herewith
submitted to the discretion of his majesty, the Emperor Kwang
Szi”. “Approved: Kwang-Szi

Sometimes these decrees, for greater continuous
publicity, were inscribed on stone, and set up near a
temple or other public spot; and this practice continued
into modern times. One has been found on a stone set up
in 1860; is the law promulgated on this stone came into
play in a lawsuit in which the writer's friend's father was
interested, and reveals a social psychology peculiarly
Chinese. It reads; 0

“It is hereby forbidden to commit suicide for the sake of making
another person liable for the homicide. By the Ching Code, no one
shall be held responsible for the suicide of another person. Never-
theless, reckless persons are found who kill themselves with the
purpose that their relatives may bring action against another person

[ 191 ]

IV. 15 — Stone Tablet with Decree of A. D. 1860
This facsimile was made from a rubbing of the original

[ 192 ]

IJ. /,uws of the Revolution

Inr rrlrihiilinn mid compciis.ii ion ; mid I lie proceedings continue for
months or even years, lint no one shall he recognized to have a
money interest in the death of a relative. All such actions shall
hereafter he disposed of within one month, false and malicious suits
shall he dismissed, and a money claim based on suicide is prohibited,
on penalty of imprisonment not to exceed three years.”

(Ill) The New Legal System

Id. The Chinese are a unique race. They are the
world’s greatest pacifists; for, though their nation is the
most numerous on earth, the Chinese themselves (except
under one dynasty, two thousand years ago) have never
gone out to seek by conquest a single acre outside of their
native territory. Conversely, they have been patrioti-
cally exclusive, and have never willingly admitted stran-
gers into that native land. And the reason, in both cases,
is that they were entirely contented, — contented with
themselves, with their ancestors, with their history, and
with their place in the world. A Chinese governor said
complacently to a friend of the present writer, less than
twenty-five years ago, when the friend, an American
explorer, showed him a modern world-map: “ Your map
is wrong. The world is flat ; and China is the centre of all
nations”. Their own name for their country is Chum
Kwe, or “the Central Nation”; or, sometimes, Tien Hia,
meaning “all that is valuable upon earth”.

But in 1912 came a constitutional upheaval, culmi-

[ 193 ]

IV. Chinese Legal System

nating in 1923. Since INilO
the irritant influence of a
half-century’s contact with
the democratic Occident,
and the suffering under mis-
government of the Manchu
foreign dynasty, had result-
ed in profound unrest among
the educated classes. This
came to an issue in 1906,
and the Emperor was then
compelled to promise im-
mediate radical changes in
IV. 16 — Constitution of A. D. 1923 China S constitution.

Events moved rapidly, for
China. In 1911 the Throne fell; and in 1912 came the
Republic, and a provisional Constitution. In 1923 this
was discarded, and a new Constitution was formally
adopted. 16 Here are the first few articles : p

Constitution of China, October 10, 1923

“CHAPTER I. FORM OF GOVERNMENT
“Art. 1. The Republic of China shall be a unified Republic
forever.

“CHAPTER II. SOVEREIGNTY
“Art. 2. The sovereignty of the Republic of China is vested
in the People.

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/./. Laws of the Revolution

“(HA Pl'F.R I V. ( 111 ZEN SHIP
“Ar(. r>. Citizens of the Republic of China shall be equal,
without distinction of race, class, or religion.”

With the Constitution came a new formulation of law,
in six compact codes, drafted on the European plan, by
foreign-trained Chinese. The Supreme Court was re-
organized. The building 1 ’ that now forms the seat of
supreme judicial authority bears a thoroughly Occidental
appearance in architecture. The interior rooms are
equally Occidental; American telephones, machine-made
furniture, electric fans, and sheep-bound law books, now

IV. 17 — Supreme Court Building, 1922

[195]

//'. Chinese Lean I System

form the environment in which this august tribunal
deliberates . 18 The Chief Justice, in his correspondence
abroad, uses a typewriting machine . 19 The Court’s de-
cisions, digested in English and French editions, cite the
new codes, tolerate portions of the old ones, and use
familiarly the Occidental catchwords about “juristic
acts”, “public policy”, and the like. Their style is il-
lustrated in the following cases, q two civil and one crimi-
nal; the civil cases should be compared with the older

' ♦

cases of a corresponding sort, quoted above:

[Modern Supreme Court Opinions.] [ Case 1 ■] “In reply to
Szechuen Higher Court, Tung 510, Oct. 3, 1916.

[ 197 ]

IV. Chinese Legal System

“[Syllabus.] Matrimonial obligations cannot be enforced by
specific performance.

“[Facts.] A’s daughter C was engaged to D the son of B.
Since his daughter was unwilling to marry, A subsequently revoked
the said contract. B sued A for the breach and asked the court to
render judgment for specific performance of the said contract. A
pleaded that his daughter was unwilling to marry, and that she had
shaven her head and made herself a nun in certain temple. C
further declared that she would commit suicide if any one forced
her to marry. The pending question in this case, therefore, was:
Whether under such circumstances specific performance could be
granted?

“[Decision and Reasons .] As a general rule, matrimonial
agreements are obligatory to the parties to the contract. But there
is neither rule nor precedent as to the specific performance of such
obligation, whose nature is far different from other kinds of contract.
According to the law of many other nations, such obligation is not
to be performed by compulsion, for it is common sense that a forced
marriage can scarcely do good to either party. The fine and im-
prisonment for the breach of marriage contract prescribed in the
provisions of the Ching Code, as suggested by the plaintiff’s counsel,
no longer carry weight, since the enactment of the new Criminal
Code. Moreover, so far as the nature of the present case is con-
cerned, such penalty would here be inapplicable. The controversy
in this case, however, can only be remedied by the compromise of
the two parties, if possible, through the admonition of the local
court.”

[Case 2.] "In reply to the Kiangsi Higher Court , Tung 1401,
September 16, 1916.

“[Syllabus.] Where the period of a mortgage of land does not
exceed ten years, redemption may be asked for by the mortgagor,
although it is expressly provided in the mortgage agreement that in

[ 198 ]

13. t*aws of the Revolution

case of failure lo redeem on the dale fixed, ihe mortgagee acquires
full lille without making further payment.

“{Facts. \ A mortgages his house to B, the agreement providing
that the mortgage is to run for five years, at the end of which the
redemption must be made, and that failure to redeem at the agreed
time vests the title in the mortgagee without any further payment
being made by the latter. The question is, whether eight years
after the making of the mortgage agreement, A is still entitled to
redeem.

“[Decision and Reasons.] A should be allowed to redeem. It
is provided in the Regulations governing the Redemption of Mort-
gaged Property [quoted ante , page 167] that where the period of a
mortgage does not exceed ten years, the mortgagor is allowed to
redeem, notwithstanding a previous agreement that the right of
redemption is cut off in case of failure to redeem at a fixed date.”

[Case 3.] “In reply to the Kwangsi Higher Court , Tung 1080,
Sept. 8, 1919.

“[Syllabus.] 1 . To purchase good provisions for robbers or to
sell rice to robbers constitute no offence.

“2. One who procures military information for robbers should
be punished, according to the circumstances of the particular case.

“[Facts.] A, a woman, lived in the mountains. She often
went to the city to procure military information for the robbers and
to purchase food and provisions for them. She did not, however,
actually participate in the act of robbing, nor did she share any
robbed goods. Another person, B, lived beside the highway, a rice-
dealer by trade. He often sold rice to the robbers when they
passed by his store. He, too, neither participated in the robbery
nor received any robbed goods. Apparently, A and B, either by
procuring information for robbers or by furnishing them with food
provisions, rendered material assistance to them, having knowledge
that they were robbers. But there are no express provisions in the

[ 199 ]

IL. Chinese Legal System

Criminal Code, punishing such acts. Are A and B guilty of any
crime?

“[Decision.] 1. A and B are not guilty of any crime, merely
because they furnished food provisions to the robbers. *

“2. A is guilty, if she is actually proved to have procured mili-
tary information for the robbers.

“[Reasons.] As to purchase food provisions for robbers and to
sell rice to the robbers are not directly connected with the crime of
robbery, person doing such acts cannot be said to be guilty. So
too for one who has served as cook to the robbers. (This point is
covered by the decisions of the [new] Supreme Court Nos. 286 and
316). But to procure military information for robbers is otherwise,
and is an offense for whose punishment provision is made in Supreme
Court Decision No. 341. One guilty of this crime should be
punished according to the particular circumstances of the case.”

14. Whether these recent changes will supplant
materially the principles and the spirit of the oldest and
solidest legal system that the world has known, remains
for the future to disclose. In contrast to the new Supreme
Court Building, the curving gables 20 of the old palace of
the Son of Heaven, the Emperor, may for the moment
seem an anachronism. The peaceful gardens in which
the most revered autocrat of the modern world once
studied the Chinese classics, to learn the precepts of his
ancestors, may now appear only to be relics of a discarded
era. And the American bank-office style of interior
fittings in the new Supreme Court's session-room is in
strange disharmony with the old Imperial Throne-room,

[ 200 ]

IV. 20 — An Angle of the Imperial Palace

14. The I'tt in it

where* l lie political ideas of ( 'on fiu'i ns received continuous
homage through more than two millenniums . 11

The earliest traditions of a Chinese code far antedate
King Uarmhal), the great legislator of Egypt, whose
portrait-statue we have here seen; yet the Egyptian legal
system was long ago buried under the sands of the Nile
Valley. The Caesars and the Senators of Rome once
arrayed their wives and daughters in raiment of silk
coming from the already civilized people of China; but
the Roman Empire has long since vanished, — a mere
episode in Time’s chronicle. Yet the institutions of
China, in spite of repeated dynastic convulsions and
vicissitudes, still live, in a virile nation of four hundred
million citizens.

[m ]

IV. Chinese Legal System

Sources of Illustrations

1. Map of China. From the map in Valentine Chirol, “The Far Eastern
Question” (London, Macmillan, 1896).

2. Confucius and his Disciples . From a reproduction of the mural painting
by John LaFarge , “The Recording of Precedents”, in the Capitol at St.
Paul, Minnesota.

3. Confucius . From a colored wood-engraving, presented by Hon. Ho Chi-
Hong t of the Ministry of Justice, Peking.

4. Governor's Yamen . From a photograph in Francis H . Nichols , “Through
Hidden Shensi”, p. 18 (New York, Scribner’s, 1905).

5. A Governor. From a photograph in F. H . Nichols (cited supra).

6. A Court. From a photographic view in John L. Stoddard, “Lectures”,
vol. Ill, p. 325 (Boston, Balch Bros., 1901).

7. Law Scripts. From facsimiles in Karl Faulmann , “Geschichte der Schrift”
(Leipzig, 1880).

8. Kublai Khan . From a facsimile in “Le Livre de Marco Polo”, etc., ed.
M. G. Pauthier , vol. II, p. 768, App. Ill (Paris, Didot, 1865).

9. Ta Tsing Lu Li, title-page. From the reproduction in Staunton (cited infra).

10. Lu Li pages. From the edition of 1907 (cited infra).

11. Certificate of Land Title. From the reproduction in Hoang (cited infra),
p. 169.

12. Supreme Court Decisions. From the edition of 1866, edited by Pao Shu
Yun.

13. Group of Law-Books. From a photograph of books in the Elbert H. Gary
Law Library of Northwestern University.

14. Gazette. From a photograph of a collection in the Elbert H. Gary Law
Library of Northwestern University.

15. Stone Tablet with Decree of 1860 . From a rubbing obtained for the writer
in 1925 by George G. H. Ma, Esq., of the Shanghai Bar; the original stone is
in the city temple at Yangchow, and the rubbing was made by Mr. Ma
Yu Po.

16. Constitution of 1923 . From a copy in the Elbert H. Gary Law Library of
Northwestern University.

17, 18. Supreme Court Building. From photographs presented to the author by
Hon. Yu Chi- Chang, President of the Supreme Court,

[ 202 ]

Sources

19. Chief Justice, ttMf*. I'Yum <i phningraph of lion. Yu Chi-Chang , pre-
nrnU‘i| to the author in 1926 by Mon. llo Chi-IIong, of the Ministry of
Justice, Peking.

20, 21 . Imperial Palace. From the illustrations in Burton Holmes, “Travelogues”,
vol. IX, pp. 3L7 and 224 (Chicago, The Travelogue Bureau, 1914).

Sources of Documents Quoted in Text

a. Philosophy of Life. Translated from Georges Padoux , preface to Leang
Ki-tchao, "La conception de la loi et les theories des 16gistes k la veille des
Tsin”, transl. Escarra and Germain (Peking, China Booksellers Ltd.,
1926).

b. Analects of Confucius, book XII.

c. Philosophy of Justice. An unexcelled analysis of this principle of Chinese
psychology will be found in an article by Upton Close (author of “The
Revolt of Asia”) in the “New York Times Magazine”, April 17, 1927 (from
which a sentence or two has been adopted). Some account of it, as ap-
plied in Japan, had been given in the present writer’s “Materials for the
Study of Private Law in Old Japan” (Asiatic Society of Japan, 1892, vol.
XX, Supplement, part I, p. 71). That a similar principle must be taken
into consideration with other Oriental races also is emphasized by A.
Mitchell Innes, in his article on Oriental justice in the Hibbert Journal,
XI, 273 (1896).

d. Per era's Account . From “Certain Reports of the Province of China

by the Relation of Gcdeotto Per era" (reprinted in Hakluyt’s

“Principal Navigations, Voyages, etc.”, MacLehose ed. 1904, vol. VI,
pp. 300-309). Perera's arrest and trial are more fully related in Friar
Caspar de Cruz> “A Treatise of China”, etc. (ed. in “Purchas his Pilgrims”,
vol. XI, p. 540).

dd . Magistrate's Keenness. From Herbert A. Giles, as quoted in Julian Haw-

thorne, ed. “Mystery and Detective Stories,” vol, VI, p. 64 (New York,
1908).

e. Law of Adoption. From the translation in Staunton (cited infra), p. 84
(Div. Ill, Book I, Sect. LXXVIII).

/. Law of Mortgage. From the translation in Staunton, p. 101 (Div. Ill,
Book I, Sect. XCV).

g. Li of 1799 and 1907, compared. From the translations (1) printed in
Staunton, p. 529 (Appendix XV), and (2) MS. by Y. Y. Wong, Esq., of

[ 203 ]

IF. Chinese Legal System

Shanghai, from the edition of 1907 (year 1 of the Emperor Shi-Tong), vol. 9,
pp. 16-20, edited by Ta-Tong Ka and Ta-Shia Yuen.

h . See the present writer’s article on “The Pledge- Idea; a Study in Com-
parative Legal Ideas” (Harvard Law Rev. 1897, X, 321, 389, XI, 1^).

i. Mortgage Deeds. From the French translations in Hoang (cited infra),
pp. 122, 127.

j. Certificate of Title. From the French translation in Pierre Hoang ,
“Notions techniques sur la propriete en Chine”, pp. 37, 169 (Shanghai,
Mission Catholique, 1st ed. 1897, 2d ed. 1915).

k. Court Procedure. From Gonzalez de Mendoza , “The History of the Great
and Mighty Kingdom of China”, ed. Staunton, chap. X (Hakluyt Socie-
ty’s Publications, London, 1853, vol. XIV, p. 107).

/. Supreme Court Opinions. From the MS. translations, by Y. Y . Wong,
Esq., of the Shanghai Bar, of cases in vol. VII, pp. 47 and 66, of Hsing An
Hui Lao, edition of 1834 (year 14 of the Emperor Tao Kwang), printed by
the house Tan Yue San Szu Tan.

1 m. Criminal Appeal. From the translation in Staunton (cited infra), p. 521,
Appendix XI.

n. Ching Pao. From MS. translations, by Y. Y. Wong, Esq.

o. Stone Decree. From the MS. translation by George G. H. Ma, Esq., of
Shanghai.

The psychology can be understood from the principles described in Ala-
baster; “Chinese Criminal Law” (cited infra), pp. 312-322; it is apparently
analogous to the Hindu practice of “sitting dharna” as described by Sir
Henry Maine (post, chap. V), and to the similar Keltic idea.

p. Constitution of 1923. From the translation in the “Chinese Social and
Political Science Review”, vol. VII, No. 4, p. 257.

q. Supreme Court Cases. From the translations in the “China Law Re-
view”, vol. II, p. 361 (April, 1926), vol. II, p. 323 (Jan. 1926), and vol. II,
p. 155 (April, 1925),

General References

James Legge, “The Chinese Classics” (translated; various editions).

Sir G. T. Staunton, “Ta Tsing Leu Lee; being the Fundamental Laws”, etc.
(London, folio, 1810 ; a translation based on the editions of 1799 and 1805) .

\ M A }

Sources

I We Guy liauluis, “Manuel du ('ode Chinois” (Shanghai, Mission Catholique,
2 vols., 1923-4: l his work, a translation of the Tsing Code, covering more
topics than Staunton’s, and including reported cases throughout the
1800’s, is now indispensable; the lamented author died in 1894).

Herbert A. Giles, “Historic China and Other Sketches”, pp. 141-232, “Lan Lu-
C'how’s Criminal Cases” (London, 1882).

Pan Ilui Lo, “A Study of Chinese Law and Equity” (Illinois Law Review, 1912,
VI, 456, 518).

“Chinese Social and Political Science Review” (Peking, 1916+).

“China Law Review” (Shanghai, Comparative Law School of China, 1923 +).

Ernest Alabaster, “Notes and Commentaries on Chinese Criminal Law” (London,
Luzac & Co., 1899); “Notes on Chinese Law and Practice preceding
Revision” (Shanghai, 1906); and Challoner Alabaster , various articles in
the “China Review”.

T. R. Jernigan, “China in Law and in Commerce” (New York, 1905).

P. Moellendorf, “Family Law of the Chinese” (Shanghai, 1879; German ed. 1895).

V. A. Riasanovsky, “The Modern Civil Law of China”, part 1 (Harbin, Zaria,
1927).

E. H. Parker , “Comparative Chinese Family Law” (Hongkong, 1878);
various articles in the “China Review”; “The Principles of Chinese Law
and Equity” (Law Quarterly Review, 1906, XXII, 190).

Hu Shih, “Development of the Logical Method in Ancient China”, chap. V
(Shanghai, 1922).

H. P. Wilkinson, “The Family in Classical China” (London, Macmillan, 1926).

G. Jamieson, “Chinese Family and Commercial Law” (Shanghai, 1921).

E. J. Simcox , “Primitive Civilizations”, vol. II, “Ownership in China” (London,
Macmillan, 1894).

P. Hoang, “La propriete en Chine” (cited supra).

K. Asakawa, “The Early Institutional Life of Japan”, chap. Ill, “Political doc-
trine of China” (Tokyo, Shuyeisha Co., 1903).

Leang Ki-Tchao, “La conception de la loi et les theories des legistes k la veille
des Tsin”, transl. Escarra and Germain, preface by Georges Padoux
(Peking, China Booksellers Ltd., 1926).

P. L. F. Philastre, “Le Code Annamite” (Paris, Leroux, 2 vols., 2d ed., 1909).

Commission on Extra-Territoriality (Peking and Shanghai) and Law Codification
Commission (Peking) ; various texts and digests of the new laws and de-
cisions, since 1919, in English or French.

[ 205 ]

The Hindu Legal System

(/) Races amt Languages in India

1. Heterogeneous peoples and law languages — Six suc-
cessive alien dominations — Mohammedan element —
Native Hindu law.

2. Sanskrit and Pali — Records on palm-leaf and stone —
Deeds of B. C. 23 and A. D. 1000— Jagannatha’s
Rules for Conveyancing.

(II) The Buddhist Branch

3. Buddhist law — King Asoka’s edicts.

4. Buddhist law in Indo-China, the East Indies and
the Philippines.

5. Burmese law — Dhammathat — Court procedure.

6. Siamese law — A trial for treason in Siam.

7. Eradication of Buddhism in India.

(Ill) The Brahman Branch

8. Brahman Laws of Manu — Caste — Village justice —
Schools of Brahman law — Jagannatha on the law of
gifts.

9. Courts of the rajahs — The Durbar — Brahman legal
advisers — Rules of pleading — Procedure by taboo.

10. Administration of justice — Bribery and perjury.

11. Brahman law submerged by the Mohammedan con- S
quests — Revived under British rule.

12. Sanskrit discovered and the law books translated —
Custom vs. scholastic books — Hindu law in British
Courts.

[ 210 ]

V

The Hindu Legal System

Races and Languages in India

HE people of India number more than three
hundred millions, — thrice the size of the popula-

tion of the United States, but living in half the

area. 1 Racially it is the most heterogeneous population
anywhere on earth; it has been called “a great museum of
races”. It uses some twenty- five principal languages, with
over three hundred dialects. A Chinese traveler reported
sixty-four different alphabets, as long ago as the time of
Christ. When a glossary of legal terms was compiled by an
Englishman, for use in the courts, seventy-five years ago,
he was compelled to employ nine different kinds of script,
as shown in the tabulation prefixed to his book.* There
are many distinct religious groups, the largest two of
which are in perennial conflict; and their religion is often
bound up with their law.

Naturally, no one system of law obtains, or ever did
obtain; but a variety of local and racial institutions.
Naturally, also, there has been no intrinsic political co-
herence. Even today there remain in India some seven
hundred self-governing native states (apart from the area
under direct vice-regal rule). The fact is, the peoples of
India seem never to have been capable of self-determina-

[211]

V. 2 — Scripts of Principal Law Languages
An English glossary of law terms employed nine different kinds
of script, to represent the principal languages used

/. R tin's

lion as a political unit . Indeed, during llie last 3000
years, India has been entered and dominated at least six
successive times hy immigrant alien races, — Indo-Aryans,
Persians, Greeks, Turks, Mongols, English:

Periods of Immigrant Races Dominant in India

1. Indo-Aryans

B. C. 2000+ ;

2. Persians

B. C. 500

3. Greeks

B. C. 325

4. Turks

| A. D. 1000-1400

5. Mongols

A. D. 1400-1750

6. English

A. D. 1750 +

Of these races, the second and the third, the Persians
and the Greeks, only took booty, and left no solid traces.

The fourth and the fifth races, the Turks and the
Mongols, brought Mohammedan law, lived in jeweled
magnificence, and developed in India the arts of archi-
tecture, sculpture, and painting, — the products of luxury
and taste. The justice of these Mohammedan emperors
was done in the Halls of Audience in their superb palaces;
the Diwan-i-Am, or Audience Room, at Delhi is known as
the “Westminster Hall” of Delhi. 8 The palaces of Delhi,
Agra, and Fathpur, have been termed “dreams in marble,
designed by Titans, and finished by jewelers”. And the
Mogul justice, of its kind, though corrupt in some periods
and places, was efficiently dispensed under many of their

[ 213 \]

V. 3 — Audience Hall at Delhi

V. 4 — Hall of Judgment at Agra

/'. Hindu Lean! System

rulers. The Emperor Sulim had a chain and hell attached
to his own room in the palace, so that all who would ap-
peal could reach him without running the gauntlet of the
palace officials. Gibbon says, of the Emperor Timour,
“Timour might boast that, at his accession to the throne,
Asia was the prey of anarchy and rapine; whilst under his
prosperous monarchy a child, fearless and unhurt, might
carry a purse of gold from the east to the west.”

But, of this dynasty, today only the palaces remain, as
monuments to a vanished autocracy. 4 Their law is merely
a branch of imported Mohammedan law (post, Chap. IX)

2. /mnf!UUf!t's and Records

i i nd is now in force only for I heir own believers — number-
ing, indeed, one-l'i fill of l lie present population of India.

'The English raee, the last to enter India, brought
iinily, liberty, and honest administration; but English
law in India is mainly public law, preserving in private
law the various native customs.

And so, of those six races of immigrants, the first, the
I ndo-Aryans, or Hindus, some 3000 years ago in origin,
are the only race that developed a native system of law.

2. The records of this native system, in its two
branches, the Brahman and the Buddhist, are contained

F. Hindu Legal System

in the Sanskrit and the Pali groups of languages, re-
spectively. The classical language, commonly known as
Sanskrit, is to medieval Pali and to modern Hindustani
very much what Latin is to the Romance languages of
Europe.

The old books and records were commonly made of

*■' ■ ■ ■ #

strips of birch-bark or palm-leaf, inscribed with a sharp
stylus, and bound in wooden or silk covers. Throughout
India and the East Indian islands the palm-leaf, the birch-
bark, and the bamboo filled the place taken by the papyrus
in Egypt. The writing-instrument was an iron or stone
stylus, and the script impression was then sprinkled with
black powder, or otherwise treated to make it clear. The
strips, measuring a few inches by a foot or more, were
then strung together through holes at each end, in ac-
cordion-style. Some of the surviving remnants of this
literary material date back towards the beginning of the
Christian era. After the arrival of paper, large sheets were
used, and then folded in imitation of the ancient leaf-
strips. As late as 1885 in Siam is found a court record,*
inscribed with a white chalk pencil on black paper, sealed
with a mud seal, and folded into these long narrow pages.

But many of the early edicts and formal records were
inscribed on stone slabs or on copper or gold tablets. The
earliest legal document extant in pure Sanskrit is a royal

[ 216 ]

2 . Languages and Records

land-grant of IV. (\ i iisc'ri I >i*c I on copper. 8 Its phrases

reveal llie Indian variants of forms of conveyancing which
will bo appreciated by the modern lawyers: a

{Oldest Sanskrit Deed , B . C. 23.] "[After a preamble reciting the
\ irl ues and conquests of the grantor-prince,] To all the inhabitants

V. 5— Siamese Court Record

The narrow oblong shape of the paper-leaf-folds is a relic of the earlier
use of palm leaves strung together, accordion-style. At the top is
shown the document’s exterior, in the middle, a page of the
opened document, below, the seal-stamps authenticating it.

[217]

[ 218 ]

2. / Mnxutiin'n and Records

of | lie town of Mesika . . . | naming ot her districts] ; lo the keeper
of l hr elephants, horses and camds, lo the keeper of the mares,
rolls, rows, buffaloes, sheep, and goats; .... to the different
Irihes [naming them], to all our other subjects not here mentioned;
and lo the inhabitants of the neighboring villages, ....

“lie it known that I have given the above-mentioned town of
M esika, whose limits include the fields where the cattle graze, above
and below the surface, with all the lands belonging to it, together
wilh the mango and modhoo trees, all its waters, and all their
banks and verdure, all its rents and tolls, with all fines for crimes
and rewards for catching thieves. In it there shall be no molesta-
tion, no passage for troops, nor shall any one take from it the small-
est part. I give likewise everything that has been possessed by the
servants of the Rajah. I give the Earth and Sky, as long as the Sun
and Moon shall last. Except, however, such lands as have been
given to God, and to the Brahmans, which they have long possessed
and now enjoy. And that the glory of my father and mother, and
my own fame, may be increased, I have caused this edict to be en-
graved, and granted unto the great Botho Bekorato Misro, who has
acquired all the wisdom of books, and has studied the Vedas under
Oslayono, who is descended from Opomonyobo, who is the son of
the learned and immaculate Botho Borahorato, and whose grand-
father was Botho Besworato, learned in the Vedas and expert in
performing the sacrifice.

“Know all the aforesaid, that as bestowing is meritorious, so
taking away deserves punishment; wherefore, leave it as I have
granted it. Let all his neighbors, and those who till the land, be
obedient to my commands. What you have formerly been accus-
tomed to perform and pay, do it unto him in all things. Dated in
the 33d year of the era and 21st day of the month of Margo.

“Thus speak the following stanzas from the book of Justice:

1. 'Ram hath required, from time to time, of all the Rajahs

[ 219 ]

V. Hindu Legal System

that may reign, that the bridge of their beneficence be l lie same, and
that they do continually repair it.

2. ‘Lands have been granted by Sogor, and many other
Rajahs, and the fame of their deeds devolves to their successors.

3. ‘He who dispossesses any one of his property, which I my-
self, or others, have given, may he, becoming a worm, grow rotten
in ordure with his forefathers !’ ”

It will be noted that the form of this deed illustrates
the rule recorded centuries later by Yajnavalkya, one of
the famous law-commentators, in these terms:

“Let a king, having given land, or assigned revenue, cause his
gift to be written, for the information of good princes, who will
succeed him, either on prepared cloth, or on a plate of copper, sealed
above with his own signet; having described his ancestors and him-
self, the dimensions or quantity of the gift, with its metes and
bounds, if it be land, and set his own hand to it, and specified the
time, let him render his donation firm.”

Another land-grant, about 1000 years later, 7 also on
copper (the hole shows where a spike fastened it), em-
ploys equally technical phraseology, with local color
peculiar to India : b

[Sanskrit Deed , about A . D . 950.] “The illustrious king In-
drapala [reciting his titles and virtues] may he prosper!

“With reference to the land bearing four thousand measures of
rice, and lying by the side of the land belonging to the Bhavisa of the
hamlet of Kasi, situated within the district of Hapyoma, in the
northern part of the country, he sends his greetings and commands
to all who reside near the afore-said fields, viz., the accountants,

[ 220 ]

[ 221 ]

V. 7 — Land-Grant (Sanskrit) about A. D. 950
This deed is engraved on copper; the hole shows where a spike fastened it

2. Languages and Records

L. Hindu Legal System

traders and other common people of the district, as well as those who
hold the rank of Raja, Rajni, Ranaka, and others, such as Rajanyas,
Rajaputras and Rajavallabhas, and all who may hold any rank from
time to time: «

“Be it known to you, that this land, together with its houses,
paddy-fields, dry land, water, cattle-pastures, refuse-lands, etc., of
whatever kind it may be, inclusive of any place within its borders,
and freed from all worries on account of the fastening of elephants,
the fastening of boats, the searching for thieves, the inflicting of
punishments, the tenant’s taxes, the imposts for various causes, and
the pasturing of animals such as elephants, horses, camels, cattle,
and buffaloes, as set forth in this charter: ......

“To the Brahman Desapala . . . [reciting his lineage] who is
austere and observes difficult ordinances, that land, as set forth in
this charter, is given by me in the eighth year of my reign.

“Its boundaries are as follows: On the east, there are the

Makkhi-path to the granary with the pond in front of it, and an
embankment, also the Hasi of the Makkhi-path established by the
still extant edict engraved on the Kuntavita pillar, and the ridge of
the fields. On the south-east of the land, there are the hamlet of
Kasi on the Kuntavita Lakkhyava property, and, along the bound-
ary of the land, the big dike. On the south, along the boundary of
the land, is the big dike. At the bend to the north and west, there
are the big granary on the property of the Svalpadyati fishermen,
and along the boundary of the land, the ridge of fields, also three
clumps of bamboos. On the south-west, along the boundary of the
land, there is the river Digumma. At the bend to the north, along
the boundary of the land, there is the same river. At the bend to
the east and the north, there are the granary belonging to the ham-
let of Kasi, and, along the boundary of the land, the ridge of the
fields. At the bend to the west, along the boundary of the land,
there is a row of houses. On the west, there is the river Digumma.
On the north-west, there is the same river. On the north, there are

the Bhavisa with the still existing charter of the holy Adilya [Sun-
god | made by Tathagata, and, along the boundary of the land, a
walnut tree on a dry spot on the ridge of the fields, on the south side
of the tank made by Pacupati, as well as a ridge of fields. On the
north-east of that land, there are the granary, with the Makkhi-
path and the pond in front of it, as well as an embankment. [Then
follows the seal, and an ascription to the king.]”

The form of deeds in use for ordinary grantors was thus
described in one of the commentaries of the late 1700’s,
based on a text of a thousand years earlier: 0

[J agannatha' s Rules for Conveyancing.] “ ‘Land is conveyed by
six formalities, — by the assent of townsmen, of kindred, of neigh-
bours, and of heirs, and by the delivery of gold, and of water.’

“The form of the writing should be this: in place of the credi-
tor’s name, let the donee’s be written, and the names of his father
and so forth, to prevent a mistake of the person; next should be
written, ‘this deed of gift, as follows: for the sake of heaven I give
unto thee, with gold and water, this land, measuring so much, and
exceeding the necessary subsistence of my family, to be held for such
a period.’ If the townsmen and the rest be not witnesses to the
deed, or if they be not present, the instrument should express, ‘with
the approbation of the king, and with the assent of sons,’ and so
forth. Though the consent of sons be not required in a gift for
religious purposes, it should nevertheless be noticed (on account of
the difficult publicity of a gift of immoveable property, which has
been remarked by Sages) that himself and his descendants may not
claim ownership. The year, month, fortnight, and day should be
noted; and the donor should subscribe his name with his own hand,
first writing the designation of his father and so forth. The names
of witnesses, informed of the whole contents, may be subscribed by
another hand, after asking their permission; but the writer’s name

[ 222 ]

[ 223 ]

V . Hindu Legal System

must be added. If any party be unable to write, the instrument '
should be subscribed by a substitute; but the donor, if unable to
write, makes some mark, as a double line, or the like. Such is the
practice.” i

(II) The Buddhist Branch

The Brahman branch of the Hindu legal system,
though it finally came to dominate, was at first probably
not more than the literary possession of the priestly class
in the Aryan principalities.

3. Meanwhile, prior to the Christian era, the Buddhist
branch had arisen and spread widely. Its active spread
dates from about B. C. 250, propagated by the edicts of
King Asoka, — often termed the Constantine of Buddhism.
Asoka’s grandfather, Chandragupta, king of Magadha, a
region of the east, had extended his rule over all the north
and west. This was shortly after the retreat of Alexander
the Greek’s invasion; and now, for the first time, in the
history of India, there was a single authority from Af-
ghanistan to Bengal, from the Himalayas to the center of
the Dekkan, — the mightiest throne then existing in the
world.

The grandson, Asoka, who came to the throne about
B. C. 270, promulgated thirty or forty edicts, engraved
on stone. 8 Asoka’s edicts were composed in the Magadha
script, a script older than Sanskrit; they represent the

V. 8 — King Asoka’s Edict, B. C. 250
The Sixth Edict deals with the king’s administration of justice.
“Complainants may report to me at any time, whether I am at
dinner or in the harem or in my carriage or in my garden”

[ 225 ]

AC Hindu Lena! System

earliest extant law records of India. In Edict VI the King '
speaks thus on the administration of justice: 11

[King Asoka's Edict.] ‘‘King Asoka, beloved of the g^ds,
speaks thus: Complainants may report to me the con-

cerns of the people at any time, whether I am at dinner or in the
harem or in my carriage or in my garden and any dis-

pute or fraud shall be brought forthwith to my notice. For I am
never satisfied with my exertions in the despatch of business. There
is no more important task for me than the welfare of all people: but
the root of that is exertion in the despatch of business. And I strive

to discharge the debt which I owe to the world This

edict has been inscribed on stone, that it may endure forever.”

Most of Asoka’s edicts are short tracts, expounding
and propagating his system of moral law, or “dhamma”,
founded on the preaching of Sakya (Buddha), some two
centuries earlier. This term “dhamma” (like “maat” in
Egyptian, “fas” in Latin, and “themis” in Greek) had a
broad inclusive import; it meant “righteousness”, “good
form”, “duty”, and as Buddhism developed — the religion
embodying Asoka’s philosophy of life — the term “dham-
ma” came to include the meaning “Law”. The new
moral-religious system spread slowly over India. “Every-
where” said Asoka’s thirteenth Edict, “men conform to
the instructions of the king as regards the Dhamma; and
even where the emissaries of the king go not, there, when
they have heard of the king’s Dhamma, the folk conform
themselves, and will conform themselves, to the Dhamma
precepts”.

4. liudd/iisf l mw

'1. The new Buddhist system, carried in the Magadha
script used by King Asoka, i>enetrated even beyond India,
into Burma, Siam, Tibet, China, and the East Indian
I slands. This Magadha script, indeed, was found as late as
A. D. 1650 in the Philippine Islands, used for the Tagalog
language. 9 For in southeastern Sumatra had arisen, about

nirtofrw

Utoi/QjlLbrtbp Y * 1 O'Ktptr* 11 fe * 7 ** 9

***? - '

V. 9 — Filipino Script of A. D. 1650
This script is founded on the Magadha script used by
King Asoka B. C. 250

A. D. 700, the Buddhist colonial kingdom of Sri-Vishaya,
whose domains finally extended to the Philippine Islands
(where the tribal name “Visaya” still bears witness to its
remnants). Later, about A. D. 1300, the kingdom of

[ 226 ]

[ 227 ]

A 7 . Hindu Legal System

Madjapahit, originating from a Brahman colony in Java, '
overthrew the Sri-Vishaya power, took control of the
Philippines, and lasted for about two centuries. The
Mohammedan invasion did not begin until this period.
So that the basis of the Malayan civilization for several
centuries was the Buddhist-Brahman religion and law.
At the time of the Spanish discovery of the Philippine
Islands, not only were the more advanced tribes using the
Hindu syllabaries for writing; but also their mythology,
folklore, politics, customary law, and general literature
had a distinct Indian cast.

This Magadha script of King Asoka, in a more de-
veloped form known as Pali, had become the repository of
the Buddhist laws of Burma, Ceylon, and Siam: and the
laws of those countries came to represent a modified
Brahman-Buddhist system.

5. In Burma, the Buddhist religion and law, carried
by missionary monks, came into official dominance after
about A. D. 1100. From that period, and during the next
seven centuries, at intervals, is found a succession of law-
books, first in Pali and later in Burmese, forming a con-
tinuous chain of systematic tradition in dogma, custom,
and precedent. 10 The authors were sometimes Buddhist
monks, sometimes royal ministers or judges; and the basis
of all was Buddhism, in perhaps its purest surviving form;

[m]

V . Hindu Legal System

yet the mythical sage Manu (specially sacred to Brah-
manism) was claimed as the primal authority.

The usual generic name for these law-books was
Dhammathat. The following passage 10 from a modern
Dhammathat recounts the king’s discovery of the wise
judge, the ideal dispenser of justice in all primitive legend,

' 'the Solomon who detects false witnesses; here he
showed his shrewdness by requiring them to tell their
stories separately, the very same expedient which made
Daniel famous as a judge in exposing the conspiracy
against Susanna:*

[The Dhammathat of Burma — The Wise Judge Discovered .]
In the country of Maha Thamada, four Bramins had by begging
obtained one hundred tickals or pieces of silver money. They had
not got four hundred, so they left the younger Bramin to watch the
one hundred, and the three elder having gone c|T begging, four bee-
hunters, who were going to the jungle, were consulted with by the
younger Bramin, ‘to divide the one hundred pieces of money equally
amongst them, and when the elder Bramins return and demand it,
I [the young Bramin] will say, A dog ran away with it ; and do you
bee-hunters say you saw it.’ After they had thus consulted, the
three elder Bramins returned. They said, ‘We have now procured
four hundred pieces of money. Do you keep the one hundred pieces
left in yo,ur care; we will each take one hundred’. The young
Bramin then said, ‘My three friends, share your money with me.
That left with me, being placed in one bundle in a cloth used for
tying up meat and fish, a dog ran away with it, and it was lost.
Though I followed with four bee-hunters, we could not recover it’.
This the young Bramin said, and when they came to the head man
of the town for his decision and stated the case as above, he ex-

5 . Hu nuc sc Law and Justice

umincd llu* four men who were going lo I lie jungle; they all said they
also had followed l he dog when he ran off. On the evidence of the
witnesses he decided that the young Bramin had not secreted it,
that it should be considered as lost, and the elder Bramins should
share with the younger.

"The elder Bramins were not satisfied; but when. they went to
the ministers of the king, they gave the same decision; and when
still dissatisfied, they went to the heir apparent; he gavey:he same.
Still unsatisfied, they went to the first qiieen, who decided the same.
They went to the king, and he also confirmed the decision. Yet still
dissatisfied, they consulted with the young Bramin and the four
bee-hunters, saying, Wherever we have gone for a decision of our
cause, it has been given against us. In a certain village, a boy de r
cides all cases, and if his decisions are correct, the Nats [deities] of
the forest, the hills, the trees and the earth, men and birds, cheer
and applaud; if they are not correct, they do not applaud. Have
you also heard this?' The others replied, they also had heard it; and
on this agreed that they would be satisfied with this young man's
decision.

"Making a declaration to that effect, they went to him. They
reached his place of abode in seven months, and enquiring for him at
the house, were told he had gone out with his father to the plough.
Following there, they saw him. Having left his father, he bathed
and washed the mud off his feet and body. These Bramins who
have come must have some dispute to decide'. Thinking thus, he
put round him his father's cloak which happened fortunately to be
at hand, and breaking a branch from a tree, spread it and set down
under the shade. The little wise man then said to the Bramins,
‘Oh! my friends, on what business have you come?' The two
parties then told him the case as it had happened. The young wise
man then said, ‘My friends, you four Bramins remain here, and you
four jungle-rangers go to a distance of four separate places', and
they did so.

[ 230 ]

[231 ]

A 7 . Hindu Legal System

'i

“He then examined one of the hunters, saying, ‘At the com-
mencement of this world, as there was no lying, there was no misery,
and at death people went to the Nat country. When they began
to speak falsely, there was misery in this life; but when they charged
this state of being, they could not escape hell, but had to endure.
Ye must speak the truth.' So on questioning him, he said they
followed the dog on his running away, but could not catch him.
The young man enquired in what direction the dog had run, and
what was his color. ‘The witness replied, he saw a white dog, and he
ran east. On questioning another in the same way, he replied a red
dog had run south. And on questioning another, he said a black
dog had run west, and the fourth said a spotted dog had run north.
Before examining the four, he had explained to them good and evil,
and made them declare that they would speak the truth. He now
said, ‘they have conspired to cheat, and concealed the money; let
them be taken to the king of the country/ As they were afraid to
go before the king, and the money they had taken was still by them,
he caused them to dig it up from where it was hid and return the
full amount

“When the Bramins represented to the king that their case had
been decided, he enquired by whom the decision had been given,
and saying, he certainly is a man of unparalleled wisdom, he sent
for the young man and appointed him minister. When the king
appointed him to try all the causes he said: ‘O king! I am afraid to
undertake the decision of all the cases in the country .... No
man is free from mistakes. I am not equal to the task.' So he
begged to be excused. The king, having fixed a certain term in
years and months, begged him to undertake it. So making his
obeisance to the king he agreed to enter the law-shed and decide
causes for seven days, and requested to be allowed to consider the
old and true road of former decisions. So he was permitted to
consider."

Burma appears in history as a kingdom united, more

[282]

5. Burmese Law and Justice

limn once under ;i single autocratic ruler, with the capital
at Pegu (or Ava). Travelers were always impressed with
the superb royal display at Pegu, — the long moat full of
crocodiles, the watch-towers, the gorgeous palace, the
great processions of elephants, the shrines of gold and
gems, the vast array of armed men, and the king himself
on his throne. The king’s audience of justice 11 is thus
described by a Venetian merchant in A. D. 1569 : f

“He sitteth up aloft in a great hall, on a tribunal seat,
and lower under him sit all his barons round about. Then
those that demand audience enter into a great court be-
fore the king, and there set them down on the ground forty
paces distant from the king’s person, and amongst those
people there is no difference in matter of audience before
the king, but all alike; And there they sit with their
supplications in their hands, which are made of long
leaves of a tree . . . . and with their supplications,
they have in their hands a present or gift, according to the
weightiness of their matter. Then cotye the secretaries
down to read these supplications, taking them and reading
them before the king. And if the king think it good to do
them that favour or justice that they demand, then he
commandeth to take the presents out of their hands; but
if he think their demand be not just or according to right,
he commandeth them away without taking of their gifts
or presents.”

[233]

5 . Burmese ! *<iw and Justice

Uni llio liurmt'st' kind’s justice' was not always per-
sonal. Since the 1200’s l lie ]>eriod of one of the earliest
law-books — a Supreme Court (for both judicial and ex-
ecutive business) had been developing; it was known as
the “Hluttaw Yon”. A senior prince presided, when the
king did not attend; and it is recorded that thopgh he
might capriciously dismiss the judges, he rarely repudiated
their decisions. The procedure of this court in the early
1700’s is described by an observant English trading
captain, Hamilton, who spent more than thirty years in
the East Indies: 8

[The Supreme Court , in Burma.] “The south gate of the palace
is called the Gate of Justice, where all people that bring petitions,

accusations, or complaints, enter All cities and

towns under this king's dominions are like aristocratical common-
wealths. The prince or governor seldom sits in council, but ap-
points his deputy, and twelve councillors or judges, and they sit
once in ten days at least, but oftener wh6n business calls them.
They convene in a large hall, mounted about three feet high, and
double benches round the floor for people to sit or kneel on, and to
hear the free debates of council. The hall being built on pillars of
wood, is open on all sides, and the judges sit in the middle on mats,
and sitting in a ring there is no place of precedence. There are no
advocates to plead at the bar, but every one has the privilege to
plead his own cause, or send it in writing to be read publicly, and it
is determined judicially within the term of three sittings of council ;
but if any one questions his own eloquence, or knowledge of the
laws of equity, he may empower a friend to plead for him ; but there
are no fees but what the town contributes for the maintenance of
that court, which, in their language, is called the Rounday, and

[ 285 ]

Hindu Legal System

those contributions are verv sm-ill ri *

of the judges, ready to write down h™ ^ ** ‘ Sot at thc backs
defendant has to say. And the casP - V tCver . the complainant and
that council, very ^quYtablv Z by the prin <* a " d

awarded to either party and’tho J ** least par tiality is found
by the deputies aCqUainted *

whole board are corrected for it sn , Sentence ls revoked, and the
appeal to court, which they may ’ do nhel7 **" ^ ° CCaS1 '° n t0
appeal is made upon ill grounds Vh/.n U™ aggneved -’ and if an

system; for in the course of hL T C ° mp ° site

invaders, in the early Christian eraT’/^'

Chinese peninsula and imt^^ ^ Ind °-

the Buddhists evnoli a r f d Brahmanis ™; and then

uaamsts, expelled from India, about A D innn *

migrated and planted their rival form of v ’

during the next thr^ 4- • religion and law

posited the CL „ 7^' The reSU,t “re-
ligion caste and • • rahmaI > aw dealing with re-
books' dealing "?? rejeCted ' but

sometimes textuallv , d ™ m,nal law were Preserved,
Chinese ideas domtted ThI Tf ^ ” A "" a ”'
fact a border-line region J, PemnSula was “
mingled in variant degrees with ** " a " Ve mstitu,ions

from Brahman-Buddhist ideas onTeCCC cC”*
ideas on the east. est to Chinese

[286]

6. Siamese Law and Justice

Each of these Indo-Chinese kingdoms — Siam, Cam-
bodia, Annam developed its administration of justice in
its own individual fashion. In Siam, for example, a
strange multiplicity of jurisdictions grew up. The region
outside of Bangkok, the capital, was divided into three
departments, each with its independent hierarchy of
courts. Within the department a case went to four
courts, each independent of the other; the first one could
sanction the complaint; the second investigated the facts;
the third passed upon the defendant’s culpability; and the
fourth imposed the sentence. This system, odd as it
seems, nevertheless reveals a high degree of organization.

A realistic glimpse of the trial-methods in Siam in the
early 1700’s is given us by Captain Hamilton (above
quoted), who was himself brought to trial there on a
capital charge. 12 Hamilton, relying on an earlier treaty
between England and Siam, had gone to that country to
trade, but was not permitted to do so, owing to the in-
trigues of a crafty Persian agent of the English governor
at a Burmese port, revoking the treaty. Hamilton’s con-
versations with the Persian, protesting against this
treatment, brought him into trouble, as he thus relates : h

[A Trial for Treason, in Siam.] “This Persian (whose name was
Oia Sennerat) and I were discoursing one day of my affairs in the
Industan language, which is the established language spoken in the
Mogul’s large dominions, and, among other things, I was laying

[287]

A 7 . Hindu Legal System

down to him the difficulties that might attend the King of Siam’s
trade, carried on from Merjee to Fort St. George, because if the rest
of the English colonies were forbid trading with Siam, they had just

V. 12 — Old and New Justice Buildings in Siam
Above is a view of the king's audience-hall in older days;
below, the modern Ministry of Justice

6. Siamese A , aw and Justice

cause to forbid his subjects to Irade to Fort. Si. George, or anywhere
else, and that other troubles might arise to the king's affairs, by
thus imposing on the king , who was ignorant of the consequences
that might follow in breaking the agreement made in England
without so much as once giving warning to the English colonies of
other parts of India

“About a week after, I had a summons to appear before a
tribunal, to answer to an indictment of speaking treason of the king.
I knew myself innocent, and appeared at the time appointed, which
was about eight in the morning. The court was held in a large,
square, oblong hall, open on all sides. About nine the judge came
with some thousands of attendants, and, as he passed by me to take
his place, he viewed me very narrowly, as I did him with much
attention. He was a man of a middle stature, about 50 years of age,
of a pleasant but grave countenance, and had a quick sparkling eye.
He spoke to my interpreter, to bid me have a care of my tongue, lest
I should prejudice myself in answering to intricate questions. I
thanked him for his admonition, and told him, ‘A word to the wise
was sufficient’.

“Having placed himself, he ordered my indictment to be read,
which was accordingly done, and in about half an hour’s time it was
ended. He asked me by my interpreter, if I understood what was
libelled against me. I answered, ‘No’. He then bade the inter-
preter inform me of the meaning of each particular paragraph, as
they were read a second time with deliberation, and, having heard
my impeachment, which was grounded only on my saying, ‘That
the king had been imposed upon\ I thought fit to deny all, and put
my adversary Oia Sennerat to prove that I had said so; but, by the
bye, I found, that saying the King of Siam was capable of being
imposed on, is rank treason.

[288]

[289]

(). Siamese / .//«> and Justice

IS. Hindu Legal System

“The judge chose out of the assembly two procurators for each
of us ; and there were no small debates, for three or four hours,
'Whether or not a stranger, who was ignorant of the laws of Siam,
could come under the penalty annexed to the transgression of their
laws, when they were broken through ignorance, and not with
design;’ but my antagonist at last carried it in the affirmative,
though the judge seemed to incline towards the opinions of my
advocates.

“Then the judge put Oia Sennerat to prove what I was accused
of, and he produced two of his own servants, who stood at some
distance when we. were discoursing of my affairs; but my advocates
challenged the laws of Siam for their insufficiency, for that law ad-
mits not of a servant’s testimony, either for or against his master.
Then he proffered to bring an undeniable witness against me, who
was the only person with us when we discoursed, and that was
Collison, who was presently sent for, and being set by my adversary,
the judge asked him by the interpreter,. if he was present at such a
time, when Oia Sennerat and I were in warm discourse. He an-
swered, he was. He then interrogated him, if he had heard me say
in my discourse, that the king had been imposed on. He affirmed
he had ; on which I perceived a cloud overspread the judge’s counte-
nance, and many others who had come to hear the trial seemed
sorrowful.

“After a little pause, the judge, by the interpreter, asked me
what I had to say to Collison’s evidence. I answered, that I had
little knowledge of him, but that he might be an honest man, or
otherwise, as his interest led him. All continued mute for a little
space, and I broke the silence by desiring the judge to ask Collison
in what language I held that discourse with Oia Sennerat, which the
judge did, and was answered, that he did not well know, but that he
believed it was in the Industan language. I begged the judge to ask
him if he understood that language, and he did so. Collison, after

[no]

sihih* pause, answered, ‘No’. Then I lie judge asked him angrily,
and with an air of disdain, how lie could come in as evidence of
words spoken in a language that he did not understand, and he
si in ply said , that he thought I had said so ; at which the whole
crowd gave an huzza, and clapped their hands, and seemed joyful.
The judge reprimanded Oia Sennerat for putting him and the court
lo so much trouble, and complimented me on my safe delivery, and
so departed seemingly well satisfied.

" When the judge came, some executioners had

followed him with their instruments of death, to put the sentence in
execution as soon as the judge pronounces it. Our debates held so
long, that it was near eight at night before we got home. Had I
been cast in my process, my head had been a sacrifice to my ad-
versary’s resentment, and my ship and cargo to the much-injured

V. 13— Siamese Modern Supreme Court, about 1920
The three Occidentals, Messrs. James, Noel and Guyon,
were the foreign legal advisers

[ m ]

m • ?|

dr ¥

mi

H[) - B if J

W I

*

■WMF

V. Hindu Legal System

king, and, to sum up all, my ship's company had been the king’s
slaves. On my returning home victorious, I had the congratulations
of all my friends, particularly the Chinese merchants, whose lives
and estates might have been endangered by the like villainous
informations.”

Siam has in modern times (about A. D. 1900) re-
organized its legal system on Romanesque models; 18 but
historically it formed a bye-product of the Buddhist-
Brahman system of India. That such a reorganization
need not mean an abandonment of historic legal ideas may
be seen from the following semi-official comment: 1

“The ancient laws of Siam are fortunately worded in very wide
terms, and are elastic enough, with the exercise of a little ingenuity,
to meet nearly all the requirements of modern conditions in this
country. The importation of brand-new codes would doubtless
make the work of the judges easier; but the advantages of working
on a system known to the people for centuries are obvious. As
substantial justice can always be meted out if the judges display
ordinary intelligence and impartiality, the changes of the future are
likely to be confined to the gradual amendment of the present
ground-work.”

7. But meanwhile, in India, between A. D. 400 and
700, a complete social and religious reaction took place.
Buddhism was eradicated, — as some say, by Brahman-
istic persecution; but the true cause is not yet agreed upon
by scholars. At any rate, though Buddhism has spread
over the entire east coast of Asia, it has virtually dis-
appeared from India, its original home. After A. D. 800
in India, Brahmanism prevailed for all Hindus.

«V. Laws of Mann

(III) Till'. Brahman Branch
n. The typical law-book of the Brahman-Hindu
system is the famous Laws of Manu, 14 ascribed by tra-
dition to Manu, the primitive author of this system, a
pro-historic deity. This system was copiously cultivated,
lor twenty centuries, by the continuous speculations of

JWsjiifafHHM II ^ II

faint TlfR Mifagci*q I

fafirMNIHMU: WWiMlfii! chl^HU^ II * II

HvL'tl *11' !«J II 9 II

Wg* ^ ^ II # II

I

[242]

V. 14 — Laws of Manu (Sanskrit)

[ 243 ]

V . Hindu Legal System

several hundred priestly jurists, who produced thousands
of volumes on law.

Perhaps the most marked peculiarity of this system
was the Brahman-Hindu rules of caste. Even today are
found more than eighteen hundred castes and sub-castes;
there are fifty million people who are untouchable by
other individuals. The law-book of Manu is founded on
the principles of caste . 3

[Laws of Manu , Chap . /.] “Par. 31. The Lord created, from
His mouth, arms, thighs, and feet, the Brahman (holy man), Ksha-
triya (warrior), Vaisya (working-man), and Sudra (menial)

“Par. 87. Now, for the sake of preserving all this created
world, the Lord ordained separate duties for those who sprang from
His mouth, arms, thighs, and feet ....

“Par. 93. The Brahman, since he sprang from the most excel-
lent part, since he was the first-born, and since he holds the Vedas,
is by right the lord of all this creation

“Par. 100. Thus, whatever exists in the universe is all the
property of the Brahman ; for the Brahman is entitled to all by his
superiority of birth.”

This rigid law of castes exalted the priesthood, sub-
ordinated the artisan and the peasant, and enforced class-
distinctions in an inhuman degree never elsewhere known
in any of the world’s legal systems.

The village communities, indeed, of the various tribes
of India, by long tradition, were left largely to their own
self-government; they had their own local judges, who

(V. Laws of Manu

inter pivlod their local customs, and these customs were
(he only law, in a large part of their daily life. We can
re-const ruet these ancient village courts , 15 in imagination,
Irom the surviving ones in the remote mountain districts,
as an observant modern traveler has depicted them: k

“\A Village Court \ Colonel Erskine, the Commissioner for the
Kumnon district, invited me to accompany him on his own official
lour . . . . . . It was a perfect education traveling with
( 'olonel Erskine, for that shrewd and kindly old Scotsman had spent
half his life in India, and knew the Oriental inside out . . , , .

On arriving in a village he would call for a carpet, and a

dirly cotton dhuree would be laid on the ground. He would then
order a charpoy, or native bed, to be placed on the carpet, and he
would seat himself on it, and call out in the vernacular, ‘Now, my
children, what have you to tell me?’ All this was strictly in ac-
cordance with immemorial Eastern custom. Then the long line of
suppliants would approach, each one with a present of an orange, or
a bunch of rhododendron flowers in his hand. This, again, from the

very beginning of things has been the custom in the East

Colonel Erskine was a great stickler for these presents; and as they
could be picked off the nearest rhododendron bush, they cost the
donor nothing.

“The outpouring of grievance and complaints then began, each
applicant always ending with the two-thousand-year-old cry of
India, ‘Dohai, Huzoor!’ (‘Justice, my lord!'). The old Commis-
sioner meanwhile listened intently, dictating copious notes to his
Brahmin clerk, and at the conclusion of the audience he would cry,
‘Go, my children, Justice shall be done to all of you,' and we moved
on to another village. It was very pleasant seeing the patriarchal

[ m\

[ 245 ]

(S’. Ld ws of M <11111

icliilinns bclwccn I lie ( nmmissioner nml flic villagers, lie unilcr-
slnixl llicm and i heir nisloins thoroughly; they trusted him and

Invcd him as their official father (The Brahmin clerk

was a very intelligent man, and spoke English admirably, but I took
a great dislike to him, noting the abject way in which the natives
fawned on him. Colonel Erskine had to discharge him soon after-
wards, as he found that he had been exploiting the villagers merci-
lessly for years, taking bribes right and left.)” ^

The Brahman jurists, nevertheless, wove local custom,
(o a large extent, into their law-books; and hence, since
I he customs varied widely in different parts of India, there
grew up four or five distinct sects, or schools, of Hindu
legal thought, each covering the whole field of the law,
but having special vogue in a different part of India
(much as the Mohammedan law developed distinct
schools in the widely distant regions of the Mohammedan
world). But all of them based their speculations on the
great original mythical law-teacher Manu, whose divine
authority they recognized.

These jurists commented on the traditional texts of
Manu and other early formulators of the law, and de-
bated the views of other commentators, just as the Jewish
rabbis developed their law by comparison of case-com-
ments (ante, Chap. III). When the English came to
govern India, they followed the earlier example of the
Hindu princes and caused digests to be compiled from
these various commentaries and schools. One of the best

[U6\

[U7]

l / . Hindu Legal System

known, compiled at the suggestion of Sir William Jones,
was that of Jagannatha. (This eminent pundit in 181f>
was still living, at the age of 108 years, surrounded by
four generations of his descendants, numbering nearly a
hundred, and lecturing daily to his pupils on law^ and
philosophy.)

The method of his digest is illustrated in the following
passage, 1 on a topic which comes into play in the English
decision quoted later (the first three paragraphs are from
the old texts) :

[Jagannatha 1 s Digest, on Capacity to Convey .] “Narada. What
has been given by men agitated with fear, anger, lust, grief, or the
pain of an incurable disease; or fora bribe, or in jest, or by mistake,
or through any fraudulent practice, must be considered as un given.
So must anything given by a minor, an idiot, a slave, or other person
not his own master, a diseased man, one insane or intoxicated, or in
consideration of work unperformed.

“Manu. Three persons, a wife, a son, and a slave, are de-
clared by law to have in general no wealth exclusively their own; the
wealth which they may earn is regularly acquired for the man to
whom they belong/

“Vyasa. ‘But, at a time of distress, for the support of his house-
hold, and particularly for the performance of religious duties, even
a single coparcener may give, mortgage, or sell the immovable
estate. ...

[Comment.] “ ‘A person not his own master / a son, slave, or the
like: so Vachespati-misra, Chandeswara, Bhavadeva and Vaches-
pati-Bhattacharya.

“Here some remark that Misra and the rest have not explained
the term as denoting one who is not owner, but have explained it

8. I .aw s of Mann

'son, slave, or the like'; by which it is denoted (hat their meaning is
this: a gift made by a person technically denominated not his own
master is void. Persons so denominated are described by Narada,
as cited by Vachespati-Bhattacharya. If there be an unseparated
brother, senior by age and virtue, and occupied in maintaining the
whole family, a younger brother has no power to give or sell either
share of the whole joint estate; therefore the gift or sale is void; but,
a (on tract made by such an elder brother is valid for both shares.

“The father has not power to give or alien, for civil purposes,
gems, pearls, land or the like, which have descended from ancestors,
nor immovable property even though acquired by himself. . . .

“Thus they interpret the law; but that is not satisfactory; for
it has been already answered. The gift even of the immovable
patrimony, for religious purposes, is valid without the assent of
sons and the rest; for excellent usage has legalized such donations,
and no particular ordinance is found on this point: neither Vijnya-
neswara, nor any other author, expressly declares that property
inherited from the paternal grandfather, and given by the father
without the assent of the sons, is a void gift. Thus, in explaining
the text, ‘the father and sons have equal dominion, etc/ Vijnya-
neswara says, the son may oppose a father attempting to give
away property inherited from the paternal grandfather. Therefore,
persons not their own masters, as a son, slave, or the like, are men-
tioned because they are nearly connected with the owner; it might
on that account be doubted whether their gifts be valid. There can
be no question whether a gift made by a stranger be good in law;
therefore it has not been noticed. . . .

“Women and the rest being dependent in all actions generally,
even the gift of female property and the like, without the assent of
the husband or master, is not valid.”

9. These priestly jurists were usually attached to the
court of a maharajah, or prince; for India, up to the nine-

[ 248 ]

[ 249 ]

y. Hindu Legal System

teenth century, was a congeries of hundreds of princi-
palities (and there are even today seven hundred self-
governing native ‘states’) ; in each one ruled independent-
ly a maharajah. The kingdom of Udaipur, in Raj-
putana, represents the oldest, the proudest, jmd the
purest Indo-Aryan stock; and their rajah, known special-
ly as Maharana, or king, justly takes precedence of all
maharajahs, princes, and chiefs of India; for his ancestor
was the only Hindu prince who never submitted to the
Mongol emperors. The rajah’s palace at Udaipur 16 was a

i

9. Ihahman Proved lire

lorlrcss, oik* of llu* many splendid structures raised all
over India l>y (lie genius of (hose Hindu architects, the
J .tills, termed by (he Hindus “magic-builders”. In this
palace of Udaipur, a household of seven thousand persons
was accommodated; for the Maharana maintained an
enormous staff of officials, civil and military.

In the open court-yard in front of the palace was held
(he Durbar, or Grand Assembly, to which in glittering
jeweled ceremony came all the chiefs and vassals of the
clan ; this was the nearest approach to a legislative parlia-
ment that developed under the native Hindu autocracy . 17
And yet we may suppose that in its way it rendered, for
the personal autocracy of the Orient, the same service —
a control by public opinion — that the Occidental repre-
sentative assembly supplies. A testimony is found in a
famous modern statesman’s eye-witness description of
the Durbar at Chitral, — one of the secluded principalities
in the Himalaya mountain region, where changes from
ancient custom have been slowest : m

“[A Durbar in Chitral .] The government of Chitral was almost
exclusively a personal government. The Mehtar [or, rajah] was
supreme. He alone had the power of life and death. Theoretically,
the whole property of the country belonged to him, and, in more
than theory, he actually disposed of the persons and possessions of
his subjects. For instance, he might and did give away men’s
wives As Mehtar, he was supreme in judicial as well as

[251 ]

y. Hindu Legal System

in executive authority ... In these and in all similar exercises
of authority the Mehtar was assisted by a Diwan-begi or Chief
Minister, and by two or three wazirs or councillors, who were con-
stantly in his company. There were usually also two aksakals
(lit. white-beards) or elders in personal attendance upon him, and a
number of chief men from outlying villages who visited the court in
relays, and took turns of ‘waiting’ upon the Mehtar. *

“A real and very efficient check upon any abuse (according to
Chitrali standards) of the authority thus created was furnished by
the publicity with which government and justice were alike ad-
ministered. Did the Mehtar dispose of wives, or confiscate prop-
erty, or assess fines, or sentence to death, in any sort of secluded
Star Chamber, the system could not endure. But all was done
'coram populo’ in open durbar, in the presence of the people, or of
as many of them as chose to attend, and in the light of heaven.
Chitral, in fact, had its parliament and its democratic constitution.
For, just as the British House of Commons is an assembly in which
nominally all members take an equal part, but where in reality the
two front benches to a large extent conduct the business, under the
eyes and subject to the possible animadversion of the remainder, so
in Chitral, the Mehtar, seated on a higher platform, and hedged
about with a certain dignity, dispensed justice or law in sight of
some hundreds of his subjects, who heard the arguments, watched
the process of debate, and by their attitude in the main decided the
issue. Such durbars were held on most days of the week in Chitral,
very often twice in the day, in the morning and again at night.”

The justice of the king was in theory personal. It was
partly done by sending judicial officials to go on circuit;
but special classes of cases were reserved for the king's
personal hearing and decision in the Audience Hall. The
second hour, or period of the day, was set apart for his

[ 252 ]

9, Hrahmau Procedure

judicial business; and il tlu* modern Hindu passion for
litigation is a race-inheritance, the hour of royal justice
must have been a crowded one. As inculcated in the
Laws of Mann, the king, when he entered the assembly-
hall, and took the seat of justice to determine lawsuits,
should be accompanied by three Brahmans learned in the
Veda; he was then assured that his justice was divine; and
divine Justice, or Dharma, says the book of Manu, is like
a mighty bull, who, if obstructed or deceived, will avenge
himself on king, judges, witnesses, or parties alike. (Some
of the Hindu penal methods, employed in the justice of
the native princes, were characteristic of the country; but
it was here the elephant, not the bull, that symbolized an
avenging justice.) 1 *

The procedure of this royal justice had received a full
development. In a law-book by Brihaspati, about A. D.
600, the procedure is thus prescribed: 11

[Brihaspati* s Rules for Pleading and Proof.] “III. The Plaint.
1. The part called the declaration; the part called the answer; the
part called the trial; and the part called the deliberation of the
judges regarding the onus probandi: these are the four parts of a
judicial proceeding.

“2. The plaint is called the first part; the answer is the second
part; the trial is the third part; and the judgment is the fourth part.

“3. In the case of a denial, a judicial proceeding consists of four
parts; likewise, in the case of a special plea; the same rule applies to

[ 253 ]

( ). Urn Inn dn Procedure

V. 18 — Execution by Elephant
This was only one of several forms of execution by elephant

a pica of lornu'i' judgment ; Iml in the case of a confession, it has two
parls only.

“ I . When plainlilT and defendant come together, each claiming
to be first, their declarations should be received in the order of their
castes, or after considering their respective grievances.

“5. Those acquainted with the true nature of a plaint declare
that to be a proper plaint which is free from the defects of a declara-
tion, susceptible of proof, provided with good arguments, precise,
and reasonable.

“6. Brief in words, rich in contents, unambiguous, free from
confusion, devoid of improper arguments, and capable of meeting
opposite arguments.

“7. When a plaint of this description has been proffered by the
plaintiff, the defendant should tender an answer conformable to
such plaint

“IV. The Answer. 1. When the plaint has been well defined,
a clear exposition given of what is claimed and what not, and the
meaning of the plaint fully established, the judge shall then cause
the answer to be written by the defendant

“8. One should not cause to be written an answer which wan-
ders from the subject, or which is not to the point, too confined or
too extensive, or not in conformity with the plaint, or not thorough
enough, or absurd, or ambiguous.

“9. If the defendant confesses, he shall state his confession; in
the case of a denial, he shall cause his denial to be written; and so
should he record his special plea in an answer by special plea, and
his previous victory in an answer by previous victory

“V. The Trial. 1. When litigants are at issue in a court of
justice, the judges, after examining the answer, shall adjudge the
burden of proof to either of the two parties.

“2. The judges having heard both the plaint and the answer,

[m\

[ 255 ]

V . Hindu Legal System

and determined to which party the burden of proof shall be ad-
judged, that person shall substantiate the whole of his declaration
by documents or other proofs.

"3. The plaintiff shall prove his declaration, and the defendant
his special plea; victory in a previous trial shall be proved by a
document recording that victory

“5. One who absconds after receiving the summons; one who
remains silent; one convicted of a crime by the depositions of
witnesses; and one who admits the correctness of the charge: such
are the four losers of their suit.

"6. One who absconds loses the suit after three fortnights; one
who remains silent, after a week; and one convicted by the wit-
nesses, or confessing his crime, all at once.

"7. He who announces witnesses and does not produce them
afterwards, within thirty days or three fortnights, suffers defeat
in consequence

"17. Evidence is declared to be twofold, human and divine.
Each of these is again divided into a number of branches by sages
declaring the essence of things.

"18. Human evidence is threefold, as it consists of Witnesses,
writings, and inference. Witnesses are of twelve sorts ; writings are
declared to be tenfold; inference is twofold; divine test is ninefold.

"19. In the case of an answer of the first or third kinds, divine
and human proof should be employed ; but in the case of an answer
of the fourth kind, an attested document recording the success of
either party should be produced."

A special feature of Hindu remedial procedure (ap-
parently akin to the racial development of practical
psychic powers) was the method of moral or super-
stitious suasion, in which the injured person proceeded to

[ 256 ]

( ). H m h /// // // / */ o red u re

starve himself and (Inis compelled the wrongdoer to come
(o terms. Essentially religious in origin, and analogous
lo the curse of the Keltic Druids, the tabu of the Poly-
nesians, and the suicide-threat (by “hara-kiri”) in Japan,
it occupied in India a more distinctive place in legal pro-
cedure; for it attracted the comments of many foreign
observers, from Sir Henry Maine in modern times back
through several centuries. Here is one form of it, as
observed by a reliable Italian traveler about A. D. 1500:°

[. Procedure to Collect a Debt.] “When any one ought to receive
money from another merchant, there appearing any writing of the
scribes of the king (who has at least a hundred of them), they
observe this practice: — Let us suppose the case that some one has
to pay me twenty-five ducats, and the debtor promises me to pay
them many times, and does not pay them; I, not being willing to
wait any longer, nor to give him any indulgence, shall take a green
branch in my hand, shall go softly behind the debtor, and with the
said branch shall draw a circle on the ground surrounding him, and
if I can enclose him in the circle, I shall say to him these words three
times: ‘Bramini raza pertha polle'; that is, 'I command you by the
head of the Brahmins and of the king, that you do not depart hence
until you have paid me and satisfied me as much as I ought to have
from thee.’ And he will satisfy me, or truly he will die there without
any other guard. And should he quit the said circle and not pay
me, the king would put him to death."

10. The administration of the law in early and
medieval Brahman India seems to have impressed favor-
ably all observant travelers at various epochs. Diodorus
of Sicily, for example, just before the Christian era, re-

[ 257 ]

[ 260 ]

10. Administration of Justice

bestows the hog whidi breaks it. The friends who can influence
intercede; and, excepting where the ease is so manifestly proved as
to brand l lie failure of redress with glaring infamy (a restraint which
human nature is born to reverence), the value of the bribe as-
certains the justice of the cause. — This is so avowed a practice, that
if a stranger should inquire how much it would cost him to recover a
just debt from a creditor who evaded payment, he would every-
where receive the same answer; the government will keep one-fourth
and give you the rest. Still, the forms of justice subsist; witnesses
are heard, but brow-beaten and removed; proofs of writing are pro-
duced, but deemed forgeries and rejected, until the way is cleared
for a decision, which becomes totally or partially favourable, in
proportion to the methods which have been used to render it such;
but still with some attention to the consequences of a judgment
which would be of too flagrant iniquity not to produce universal
detestation and resentment.

“Providence has, at particular seasons, blessed the miseries of
these people with the presence of a righteous judge. The vast
reverence and reputation which such have acquired are but too
melancholy a proof of the infrequency of such a character. The
history of their judgments and decisions is transmitted down to
posterity, and is quoted with a visible complacency on every oc-
casion. Stories of this nature supply the place of proverbs in the
conversations of all the people of Indostan, and are applied by them
with great propriety. ”

An eminent French missionary of the early 1800’s,
after thirty years of intimate observation, recorded this
opinion of the methods of justice in the Madras region; 8

[Quality of Hindu Justice .] “Governed from time immemorial
by despotic princes, who recognized no law but their own free will
and pleasure, India has been accustomed to a form of judicial ad-
ministration peculiar to herself. There has been no legal code,

[ 261 ]

V. Hindu Legal System

V — -

neither has there been any record of legal usage. There are, it is
true, a few works containing general legal principles, and a few wise
legal maxims which have helped to guide the judges in their de-
cisions; yet nowhere have there been properly organized courts of
justice. Ordinary cases have generally been settled, without any
right of appeal, by the collectors of public revenue, assisted by as-
sessors selected from the principal inhabitants and by the military
officer commanding the district.

“The Hindus have neither barristers nor solicitors; neither are
they compelled to submit to those long proceedings and intermin-
able delays, the cost of which often equals the value of the matter
under dispute. When it is a question of dividing property or of
other business of any importance, it is generally submitted to the
arbitration of relatives or of the headmen of the caste; and if the
nature of the suit or the high rank of the litigants render it ad-
visable, all the principal inhabitants of the district assemble to de-
cide the point at issue.

“When a case is brought before the revenue officer of the dis-
trict and his assessors, no difficulty is experienced in getting them
to settle the dispute if they think that they are likely to make any
money out of it. Otherwise they will easily invent some pretext
for putting off the matter till some future time when they may have
more leisure to attend to it. In any important case they try their
best to bring the parties to an amicable understanding; and if that
is impossible, they leave the decision to a ‘panchayat’, or tribunal of
five arbitrators, which may be composed of a larger, but never of a
smaller number than five. If caste customs are the subject of dis-
pute, the settlement devolves upon the heads of the castes. The
procedure generally followed is that dictated by common sense, by
ordinary intelligence, and by such principles of equity as one al-
ways expects to find established, in theory at any rate, in all civil-
ized countries. Besides, almost every member of a caste is well
acquainted with its different customs, which are handed down by

/ 0. Administration of Justice

Imdilinn I rnm fill her 1<> son, ;iikI llms iiiv never lost. In short, the
lorm of judicial procedure in India is less complicated than that of
Kurope, and would leave little to be desired if the scales of Themis
wen* not much more easily pul off their balance there than in other
countries.

"Impartiality and disinterestedness are virtues with which
Hindu judges have but a very slight acquaintance. Too weak to be
able* to resist the bribes that are offered them, or to be independent
of the prejudices and predilections of their own circle, or to be above
all considerations of personal interest, their judgments are rarely
conspicuous for unswerving uprightness and integrity. Almost in-
variably it is the richer suitor who gains the day; and even the most
guilty generally find some means of blunting the sword of justice.
If the parties to a suit have an equally good case or an equally bad
one, the party which makes the most noise and is loudest in its
abuse of its adversary usually gains the day, for eloquence at the
Indian bar consists in shouting with all the strength of one's lungs,
and in pouring such a flood of invective on one’s adversary that he
has not an answer left.

“There are two or three Hindu works which contain rules and
directions concerning the administration of justice, both civil and

criminal Many legal precepts and

decisions, which would be most useful helps to a judge, might be
gathered from these works; but, as usual, they are immersed in a
farrago of nonsense, religious and otherwise. For instance, one
may find there numbers of decisions in hypothetical cases that are
either perfectly ridiculous or morally impossible, and also numbers
of idiotic theses propounded ‘ex cathedra’. Furthermore, whatever
valuable information may be found here and there in these books is
quite beyond the comprehension of the majority of Hindus, who
do not in the least understand the learned terms in which they
abound

“In civil as well as in criminal cases, when the evidence does not

[262]

[268]

10. .Idminist ration oj Justice

V. Hindu Legal System

completely establish a fact, the Hindus often have recourse to
ordeals to decide the point at issue. There are four ordeals general-
ly recognized among Hindus, namely, by the scales, by fire, by
water, and by poison. It is not the magistrates only who order
these trials by ordeal. Anyone has the right to insist on such a
trial. Thus, if a theft has been committed, the head of a household
compels each member to undergo an ordeal. In the same way, the
head of a village may force it upon all the inhabitants on whom
criminal suspicion may rest; and a jealous husband may order the
same in the case of his wife whose fidelity he doubts. These ordeals
sometimes produce such an effect on the real culprits that they are
convinced that discovery is inevitable, and think it more prudent to
confess their guilt at once than to aggravate the matter by keeping
silence. On the other hand, such ordeals often occasion deplorable
miscarriages of justice, and result in the conviction of innocent
persons, who, strong in the knowledge of their innocence, fondly be-
lieve that the natural course of things will be reversed in their
favour

“No doubt the disregard of the sanctity of an oath prevailing
among the Hindus has, to a certain extent, necessitated the adop-
tion of this system of trial by ordeal. Certain it is that there is no
nation in the world who think so lightly of an oath or of perjury.
The Hindu will fearlessly call upon all his gods — celestial, terres-
trial, and infernal — to witness his good faith in the least of his
undertakings; but should fresh circumstances demand it, he would
not have the smallest scruple in breaking the word that he had so
solemnly pledged. Woe to the imprudent person who confides to
Hindus any private matter that affects his fortune, his honour, or
his life! If it served their purpose, they would divulge it without
any hesitation. The unscrupulous manner in which Hindus will
perjure themselves is so notorious that they are never called upon to
make a statement on oath in their own courts of justice, unless they
are persons who bear an exceptionally high character.

[m]

"Hut llu‘ jurisprudence of I lit* Hindus, like the rest of their
political institutions, has undergone a complete change since a great
Kuropcan Power has dominated the country. Regular courts of
justice have been established at great expense in every district to
protect the rights and settle the differences of persons of all classes,
irrespective of rank, position, and caste. And this is, undoubtedly,
one of the greatest benefits that a just and enlightened Government
can bestow on any country.”

But in valuing the credit to be given to these variant
opinions, four circumstances must be kept in mind (and
t hey apply more or less to any alien observer’s accounts
of Oriental justice). In the first place, as to the extent of
parties’ perjury, few observers are qualified to pronounce
a comparative judgment. An English trial judge, in 1895,
who had long held court in India, thus recorded his
opinion of the comparative prevalence of perjury in
England and in India: “In India, no doubt, there was a
good deal of lying, but many of the lies were of a stereo-
typed form (like fictitious averments in our pleading);
and I certainly think it harder to get at the truth in an
English local court than it was in a local court of North-
west India.” In the second place, as to bribes (alias gifts)
to judges, it must be remembered that the practice of
suitors’ gifts to court officers (the progenitor of our modern
court fees) survived long in Europe ; that in France as late
as the 1600’s all judicial officers purchased their posts from
the king (the chief justice paid upwards of 500,000 livres)

[ 265 ]

Z 7 . Hindu Legal System

and reimbursed themselves from the suitors’ fees; and that
in the early 1700’s an English Chancellor was impeached
for selling the appointments to masterships in chancery in
accordance with old custom. In the third place, in those
countries of the Orient where the autocratic ruler dis-
pensed personal justice, the quality of justice depended
much on the ruler’s personality, and therefore varied from
reign to reign, between good and bad. And in the fourth
place, in a country like India, composed of scores of
extensive independent domains, the quality of justice
varied in different regions. !# Thus different observers
might have different reports to make.

11. During the seven centuries of Mohammedan
rule, over a large part of India this Brahman-Hindu law
was more or less in abeyance ; it obtained only as customs
of the conquered race, ignored or barely tolerated ; and
fewer law books were written in this period. But when
the English came to rule India, late in the 1700’s, the
Hindu law books were restored to full prestige (and for a
while, as some maintain, to even a greater prestige than
they had ever enjoyed under the native rulers). The
Hindu pundits, or jurists, were called in to advise the
English judges in all lawsuits dealing with Hindus. The
manner of applying the Hindu law in the earlier English
courts may be seen from the following decision, in the year

[gee]

[ 267 ]

V. 20 — Audience Hall at Madura

/ , Hindu l.,egal System

1815; the rule of law here applied is expounded in the
Hindu texts already quoted from Jagannatha’s Digest:'

[An English Judicial Opinion.] u Bishwa-nath Dull versus
Burga-prasad Bey and Shih-chander Bey.

“East, C. J. — This was an action of ejectment for some prem-
ises, containing altogether five Katas and fifteen Chhataks, with a
dwelling-house at Arkuli in Calcutta, of which Nil-mani Dey, who
died between nineteen and twenty years ago, was the patrimonial
owner. It appears by the evidence of one of the family that Nil-
mani, for the last two or three years of his life, had been insane and
incapable of work, and that his wife was obliged to dispose of all his
personal property in support of him and his family during his
malady. At his death he left his widow Abhoya and three infant
children, two sons, and an unmarried daughter. Those sons are the
present defendants. At his death there was nothing left for the sub-
sistence of his family but the property in question, and another
small piece of ground, containing five Katas and a half, which he
had purchased a short time before his derangement.

“The present lessor of the plaintiff claims under a deed of pur-
chase, in reality from the widow, but nominally from her and her
eldest son, both being parties to the deed, dated 15th Agrahayan
1203 B.S., nearly twenty years ago, for the price of Rs.218. It is not
disputed that the price was fair at the time ; and it appears to have
been an open and avowed transaction; but it was also admitted
that, at that time, Durga-prasad, the eldest of the two infant sons,
and who was a nominal party to the deed, was only seven or eight
years of age.

“The right, therefore, if any, of the widow to dispose of this
property arose and was put upon the ground of necessity, for the
support and subsistence of herself and her children. This formed
the first and principal point which was made, and on which the
opinion of the pundits was taken as follows: —

[ 268 ]

II. linihmnn I mw Revived

"Oucslioii In I’midils: I. Can a Hindu widow, having infant

miiis, s,ll | lie properly of (hose sons lo a stranger under any circum-
s| .Hires of waul? Answer: She may, lo preserve the children from
waul, and that without consulting the rest of the family. Q. 2.
Itv what authority? A. 2. The Daya-tattwa, the Daya-bhaga, and
l lie Vivada-chinlamani. Q. 3. If there be a widow and brother of
the father’s side, and infant children, who is to manage for the
family, whether divided or undivided? A. 3. If the family were
undivided, the uncle of the children has the management. If di-
vided, the widow has it, but in cases of emergency she will consult
i lie relations of her husband. Q. 4. Suppose she sold the property
without consulting those relations, would the sale be binding?
A. 4. It is necessary for her to consult the relations; but if they re-
fuse, then she may sell without their consent, as much as is necessary
for the purpose. But she can, in cases of emergency, sell without.
Those cases of emergency are, the subsistence of a child, the portion
of a daughter, and a shraddha. Q. 5. If the widow have the means
of subsistence from the support of the family, can she then sell the
property? A. 5. Not so, if she have support.

“In addition to these opinions of our own pundits, we desired
this case to stand over, in order to learn what the opinions of other
pundits might be, as I had been informed that the same question
was then actually pending before the Mofusil court of appeal, and
that Mr. Watson, the judge, had desired the opinion of the Mofus-
il pundits to be taken upon the points: and I have been since in-
formed, that, in the course of our last vacation, those opinions
having been taken, were in conformity to the opinion of our own
pundits; and that judgment was given accordingly by the court of
appeal in favour of the widow’s right to sell in cases of necessity.

“In truth, it seems that such a power is founded in necessity and
good sense, in a country where there is no public provision for the
poor; for otherwise it might happen that a child’s life might be
sacrificed for preserving his property.

[ 869 ]

V. Hindu Legal System

“The only question, therefore, which remains, is, whether I lie
necessity, from which the power arises, did in fact exist in this case.

“On these grounds we think that the purchase was well made,
and that there should be judgment for the lessor of the plaintiff, who
had been in possession under the purchase-deed for nearly nineteen
years before he was lately ousted by a judgment in ejectment
snapped against him. Judgment for the plaintiff. 4th July, 1815.”

12. Meanwhile, however, the Sanskrit language, the
vehicle of these hundreds of volumes of Hindu law, had
remained totally unknown to Europe. How completely
shut off India had been from Europe may be realized from
the circumstance that no European had ever seen an
Indian sovereign face to face in official intercourse, from
the time of Alexander the Great down to the arrival of the
English commercial envoy in the time of James I, — an
interval of nearly 2000 years. But in 1786, a young
English lawyer, William Jones,* 1 author of one of our
earliest scholarly law-books, Jones on Bailments, but also
an accomplished linguist, with a fondness for Oriental
poetry, went out to India as a judge, in the government of
Warren Hastings. Jones, browsing curiously among the
native poetry, stumbled upon this elaborate law-book of
Manu, written in Sanskrit.

His discovery thrilled his linguistic zeal ; he translated
it into English ; it was published in 1794. His studies soon
revealed to scholars of the western world the immense

[ 270 ]

I 7 . Hindu Leant System

significance of the Sanskrit language; and the modern
science of comparative philology, which now fascinates
hundreds of the world’s scholars, and the modern theory
of a primitive Aryan race, which revolutionized our con-
ceptions of ethnology, were the wonderful outgrowths of
this young lawyer’s enlightened curiosity.

Since his time, the beneficent British policy, in con-
trast to the ruthless despotic contempt shown for the
Brahman law by the original Turkish and Mongol con-
querers, is to let each people live according to its own
traditions and customary law.

When the English first undertook to superintend the
administration of justice in India, it was believed that the
Hindu law-books, founded on the Brahman religious
system, represented in all details the rules actually in
force for the Hindu communities. But by the middle of
the nineteenth century the truth began to be discovered
that the local customs, especially in land tenure and in-
heritance, and the customs of castes, guilds, and families,
were and always had been a principal, if not the prime
source of local law ; and that the religious law-books did not
always reflect these customs, and were referred to (in
some regions and on some topics at least) only as a
secondary source, — somewhat as the classic Roman law-
books were later used by the Germanic peoples of Europe.

[ 272 ]

12. Hindu L<rw Under liritish Rule

Moreover, the Brahman pundits, in the -composition of
I heir books, were apt to write as chambered scholars seek-
ing the logical perfection of the system; they pictured an
ideal of the law as it ought to be, in Brahman conception;
so that many parts of their law-treatises are speculative
and fantastically unreal, elaborating rules which never
could have been law in practice. (In this respect, the
parajlel is striking between their books and those of the
Irish Keltic books, post, Chap. X, composed by the
Brehons, or priestly jurists).

The controversy over the extent of the validity of the
Hindu jurists’ treatises has not even yet been fully settled.
However, scores of them have been edited and trans-
lated and used in the courts, during the past hundred
years; long series of decisions and ordinances have en-
forced their rules; and they now form the warp and woof
of the private law for Hindus.

And that law is interpreted for the Hindu people
largely by their own kindred. For example, in the judicial
establishment of Bengal, including the High Court at
Calcutta , 22 a modern civil service list showed that, out of
some four hundred and sixty judges, only sixty were
Englishmen, while four hundred were Hindus. And in
the Law College of Calcutta University, the president of
the college was a Hindu, and the English lecturers num-

[ 278 ]

V. Hindu Legal System

bered only two, while the Hindu lecturers numbered
fifty-three.

Thus the rights of two hundred millions of Hindu
population are still determined mainly according to the
texts and customs of this Hindu legal system, which
traces its origin back for 3000 years, to the ancient Aryan
invaders, — the contemporaries of Moses, of Confucius,
and of Ramses.

JL

V. 22 — The High Court at Calcutta

[274 1

Sources

Sources of Illustrations

1. Map of India , B. C. From the map in T. W. Rhys-Davids , “Buddhist

India", p. 320 (New York, Putnam's, 1903).

2. Scripts of Principal Law Languages. From the table in H . H. Wilson ,
“Glossary of Judicial and Revenue Terms, etc., of British India”, p. xi
(London, 1855).

3. Audience Hall at Delhi. From a view in the collection of the Art Institute
of Chicago.

4. Hall of Judgment at Agra. From a view in the collection of J. W. Butcher ,
London.

5. Siamese Court Record . From a photograph of the original in the possession
of Eldon R. James t Esq., formerly Legal Adviser to the King of Siam, now
Librarian of the Harvard Law School.

6. Land-Grant of B. C. % 8 . From the facsimile in Charles Wilkins , "A Royal
Grant of Land engraved on a Copper-Plate, 23 B. C." (Asiatic Researches,
vol. I, London, 1806, p. 123).

7. Land-Grant of A. D. 1000. From the facsimile in A. F. R. Hoernle , “The
Gauhati Copper-Plate Grant of Indrapola”, plate II (Journal of the Asiatic
Society of Bengal, vol. LXVI, part I, 1897},

8. King Asoka's Edict. From the facsimile in James Burgess and George
Buhler t “Archaeological Survey of Southern India: the Buddhist Stupas of
Amaravati and Jaggayyapeta", Edict VI, plate LXIV and page 123 (Lon-
don, Trubner, 1887).

9. Filipino Script , A. D. 1600. From the facsimile in Ignacio Villamor , associ-
ate justice of the Philippine Islands Supreme Court, “The Ancient Filipino
Writing”, p. 44 (Manila, 1922).

10. Dhammathat. From the text in D. Richardson , “The Damathat, or The
Laws of Menoo translated from the Burmese”, p. 17 (Rangoon, Hantha-
waddy Press, 1904).

11. Audience at the Court of Burma. From the drawing in Sir Henry Yule ,
“Narrative of a Mission sent by the Governor General of India to the Court
of Ava”, p. 84 (London, Smith Elder, 1858); photograph furnished by
W. C. Lane t Esq., Librarian of the Harvard University Library.

12. Old and New Justice Buildings in Siam. From “Siam' and Laos as seen by
our American Missionaries”, p. 340 (Phila., Presbyterian Board of Publica-
tions, 1884), and A. Cecil Carter , ed. “The. Kingdom of Siam”, p. 186 (New
York, Putnam, 1904).

[ 275 ]

V ' . Hindu Legal System

13. Siamese Modern Supreme Court. From a photograph in the Yale University
Law School, obtained by Eldon R. James, Esq., formerly Legal Adviser to
the King of Siam, for Hon. G. P. Ingersoll, formerly United States Minister
to the Court of Siam.

14. Laws of Mann (Sanskrit). From a page of the edition by Julius Jolly ,
“Manava-Dharma Sastra”, VIII, 1-6 (1887).

15. Village Trial Scene . From a drawing in Louis Rousselet, “India and its
Native Princes", p. 418 (London, Chapman & Hall, 1876).

16. Palace at Udaipur . From a view by the McIntosh Stereopticon Co.,
Chicago.

17. Durbar at Udaipur. From a drawing in Rousselet (cited supra), 166.

18. Execution by Elephant. From a drawing in Rousselet (cited supra), p. 114.

19. The Gaikwar of Baroda Holding Court. From a drawing in Rousselet (cited
supra),

20. Audience Hall at Madura. From a drawing in “Bilder- Atlas”, vol. V, Archi-
tecture, plate 18, fig. 2 (Brockhaus, Leipzig, 2d ed. 1875).

21. Sir William Jones. From the frontispiece to vol. I of his “Collected Works”
(ed. 1807).

22. High Court at Calcutta. From the illustration in H.D. Traill , “The Capitals
of the World”, p. 506 (New York, Harpers, 1894).

Sources of Documents Quoted in Text

a. Land-Grant B. C. 23. From the translation in Wilkins , cited supra.

b. Land-Grant A. D. 1000. From the translation in Hoernle , cited supra.

c . Form of Deeds. From the translation in H. T. Colebrooke, “Digest of
Hindu Law on Contracts and Successions, with a Commentary by Jagan-
natha”, vol. I, p. 441 (Mad r as, 3d ed., 3 vols. 1864).

d. Edict of Asoka. From the translation in Burgess & Buhler (cited supra),

p. 123.

e. Anecdote from Dhammathat. From the translation in Richardson (cited
supra). The same expedient is noted in a Persian Chronicle.

/. King’s Audience in Burma. From Caesar Frederick's account, in Hakluyt’s
Voyages, vol. X, p. 127, as quoted in G. E. Harvey , “History of Burma”,
p. 175 (London, 1925).

g. Burmese Procedure. From Capt. Alex. Hamilton , “A New Account of the
East Indies”, ch. XXXVI (Pinkerton’s “Collection of Voyages and Travels”,
vol. VIII, p. 423, London, 1811).

Sources

It, Siamese Trial. From Ham i Hon, supra, p. 472.

i. Siamese Modern Law. From Carter, “Kingdom of Siam”, p. 186 (cited
supra).

/. Laws of Manu. From the translation in Burnell , Lecture I (cited infra).

k. Village Tribunal. From Lord Frederic Hamilton , “The Days before Yester-
day’^ P- 310 , being vol. II of “My Yesterdays” (London, Hodder & Stough-
ton, 3d cd., 1920).

I Jagannatha’s Digest. From the translation in Colebrooke , vol. I, p. 454,
book II, ch. IV (cited supra).

m. Durbar in Chitral. From Marquess Curzon of Kedleston , “Leaves from a
Viceroy’s Notebook, and Other Papers”, p. 131 (London, Macmillan, 1926).

n. Brihaspati Passage. From the translation in Jolly , pp. 289-297 (cited
supra).

o. Italian Traveler. From “Travels of Ludovico di Varthema”, p. 147 (cited
infra).

p. Diodorus of Sicily. From his “Bibliotheca Historica”, book II, par. XLII,
vol. 2 , p. 124, ed. Wesseling (cited ante , chap. I).

pp. Strabo. From his “Geography,” b. XV, c. I, §§ 53, 54 (transl. Falconer
& Hamilton, vol. Ill, p. 105; London, Bohn ed., 1889).

q. Arab Travelers. From Al Idrisi , as quoted in Sir H. M. Elliott , “History of
India”, 1867, vol. I, p. 88; and “Travels of Ludovico di Varthema ”, ed.
Badger (Hakluyt Society Publications, 1873, vol. 32, p. 148, note 1).

r. English Traveler. From Orme , “The Government and People of Indostan”,
p. 444, as quoted in James Mill , “History of British India”, 1840, 4th ed.,
vol. I, p. 216, book II, ch. 3.

s. French Missionary. From Abb6 J. A. Dubois , “Hindu Manners, Customs
and Ceremonies”, ed. Beauchamp, 3d ed., 1906, p. 654, part III, ch. VIII.

t. Bishwanath Dutt case. From Sircar, p. 409 (cited infra).

[ 276 ]

[ 277 ]

Sources

F. Hindu Legal System

General References

India Proper:

A. C. Burnell, “The Ordinances of Manu, translated from the Sanskrit”, edited

E. W. Hopkins (London, Trubner, 1884).

Sacred Books of the East ( Clarendon Press), translations of several Hindu law-
texts.

Thos. Foulkes, “The Hindu Law of Inheritance, according to the Sarasvati-
Vilasa” (London, Trubner, 1881).

B. H. Baden-Powell, “Land Systems of British India” (Oxford, Clarendon Press,

3 vols., 1892).

II. Cowelly “Hindu Law as administered in the Courts of British India” (Tagore
Law Lectures, 1870-71, London, 1896); “History and Constitution of Courts
and Legislative Authorities in India” (Tagore Law Lectures, Calcutta, 4th
ed. 1899).

Julius Jolly y “Outlines of an History of the Hindu Law of Partition, Inheritance,
and Adoption” (Calcutta, Tagore Law Lectures, 1883).

John D. Mayne t “Hindu Law and Usage” (London, 9th ed. 1922).

Janies H. Nelson y “Scientific Study of Hindu Law” (London, 1881); “Indian Usage
and Judge-Made Law in Madras” (London, 1887).

J. B. Norton ,, 11 A Selection of Leading Cases on the Hindu Law of Inheritance”
(Madras, 1870).

Wm. H. Morley , “The Administration of Justice in British India; its History and
Present State” (London, 1858).

S . Sircar , “Vyavastha-Darpana, a Digest of the Hindu Law as current in Bengal”
(Calcutta, 1867).

C. L. Tupper , “Punjab Customary Law” (7 vols. 1881); “Customary Law of

Districts in the Punjab” (11 vols., 1882-1901).

A. Steele , “Law and Custom of Hindu Castes within the Dekhan Province”
(Bombay, 2d ed. 1868).

Whitley Stokes , “Anglo-Indian Codes” (Oxford, 2 vols., 1888, and later editions).

Sir Henry Sumner Maine , “Ancient Law” (1861, and later editions); “Early
History of Institutions” (1875); “Village Communities” (1876); “Early Law
and Custom” (1883).

G. Sarkar, “Hindu Law” (Calcutta, 1905-6).

Sripati Roy, “Customs and Customary Law in British India” (Calcutta, Tagore
Law Lectures, 1908).

[ 278 ]

E. J. Trevelyan, “Hindu Pamily Lsiw as administered in British India” (London,
1908).

/,] ||'. Hopkins , “The (Growth of Law and Legal Institutions” (chapter in “Cam-
bridge History of India”, vol. I, 1922).

/ ft. Gharpure, “Hindu Law” (with map of the areas of the several law-sects;

Poona, 3d ed., 1921).

Burma, Siam, Cambodia:

I), Richardson, “The Damathat” (cited supra).

J. Jardine, “Notes on Buddhist Law” (5 parts, 1883).

E. Forchhammer, “The Jardine Prize: An essay on the Sources and Development
of Burmese Law” (Rangoon, 1885).

A. C. Carter, “Kingdom of Siam” (cited supra).

Adhemard Lecllre , “Recherches sur la legislation cambodgienne, droit prive”
(Paris, 1890): “Recherches sur la legislation penale cambodgienne” (1894);
“Recherches sur le droit public des cambodgiens” (1894).

[ 279 ]

Prologue to Chapter VI

Of the foregoing five earliest legal systems, the Chinese
was the only one not founded on religion; in the Egyptian,
the Mesopotamian, the Hebrew, and the Hindu legal
systems, the law is conceived as revealed and imparted,
through the ruler, directly from God, and therefore is a
part of the dictates of religion. The later Mohammedan
system was also of this type. With the Greeks, in their
maturity, is first met a legal system that is secular, i. e.
it is not conceived as a part of religion, emanating from a
divine source.

The importance of this distinction, as affecting the
scope and spirit of law, has been lucidly summarized by
a modern scholar : aa

“The characteristic thing in Judaism at the beginning of our
[Christian] era is not its resemblance to a church, but that it con-
ceived itself as revealed religion, and drew all the consequences of
this conception. God had not only made himself known to men,
but had given them in his twofold law a revelation of his will for
man’s whole life, and of the way of salvation through the fulfilment
of his righteous and holy will

“In this aspect Judaism falls into the same class with Zoroas-
trianism (the prophetic reform religion of the Iranians) and with the
religions of India, — Brahmanic, heretical, and sectarian. Wherever,
indeed, men have taken the idea of revealed religion seriously and
logically, there a divine law, embracing not only what we call the
principles of religion but their manifold application to all man’s

[ 288 ]

Prologue

relations to God and to his fellow-men, a law not only of rites and
observances but for the civil and social side of human life, forms a
large and fundamental part of the revelation. And partly under the
necessity of new situations, partly by scholastic interpretation and
casuistic development, it becomes progressively more comprehensive
and more minute. As revelation, explicit or by clear implication, all
this law has the same divine origin and authority; the infraction of
even the seemingly most trivial prescription may be followed by
incommensurable consequences, for it is not the trivial rule that is
transgressed or neglected, but the unitary law of God which is
broken.

“Such religions are often called ‘nomistic’, that is to say, re-
ligions founded on and concluded in a law (nomos) given by God.
The important thing is not what we call them, but the recognition
that this development is a logical consequence of the idea of re-
vealed religion.”

With the Greeks, then, and after them the Romans,
we come to secular systems of law. These two, indeed, in
their earlier stages retained remnants of divinely revealed
authority; but in their developed stages had become
secular. All the racial systems of later origin (except the
Mohammedan, which followed the Semitic instincts of
the Mesopotamians and the Hebrews) were secular in
their sanction.

17

The Greek Leyil System

1. Grom* in the Homeric' Period- ---The Law-
suit on Achilles’ Shield — Themis— Greek
justice not theocratic, but democratic.

2. Classical period — Tribunals of jurors as
judges — Juries of 500 persons — Socrates’
Trial.

2. Aristotle’s description of the drawing of
the jury and the conduct of the trial —
Mock- trial of Lucian — Juries the all-power-
ful judges of law and of fact.

4. Civil litigation— Record of the lawsuit of
Pausimachos’ Heirs v. Calymna City.

5. Places of trial— Phidias’ trial in the Market-
place-Trial of Orestes on the Areopagus.

6. Jury- trial and forensic oratory — Lysias, the
speech-writer — Hyperides and the trial of
Phryne — Demosthenes’ speech in the case
of Darius v. Dionysodorus — Demosthenes’
speech on the Crown.

7. Legislation — Minos the first law-giver
City-laws of Gortyna— Solon the legislator
— Legislative methods.

8. Conveyancing — Deed, Lease, Loan
Drainage Contract.

9. Greek Art and Literature in contrast to
Greek Legal Science.

[m]

VI

The Greek Legal System

HE Greek legal system extended, in tangible
history, from the Homeric or Trojan period,
perhaps B. C. 1200, to the absorption of Greece
into the Roman system, about A. D. 300. 1 In Homeric
Greece, with its numerous independent clans of freemen,
we meet for the first time in legal history a new type pf
Justice and Law, — the democratic type.

There was never (until Alexander’s time) a siftgle
unified Greek nation, an empire, under an autocratic
ruler. The Greek race emerges into history as a hundred
or more local tribes, or clans, or city-states, each inde-
pendent, and each based more or less on democracy. In
each tribe, in palaces such as that of Mycenae, the king,
or chieftain, presided in patriarchal fashion. Agamem-
non, king of Mycenae, and brother-in-law to fair Helen of
Troy, was the most powerful chieftain of his time, and to
the siege of Troy he took twelve hundred ships and the
largest train of followers; he walked among his clansmen,
as Homer tells us, like a bull amidst the horned herd, like
unto Jove in eye and forehead. But his leadership was
primarily that of a battle chieftain. And the civic justice
within the tribe was done, not by his autocratic or di-
vinely inspired royal decree, as in Egypt and Babylon and

[ 887 ]

V I. Greek Legal System

India, but by the general assembly of the clan or tribe.

The earliest specific mention of this democratic justice
is found in Homer's description of one of the scenes de-
picted on the splendid shield which Hephaestos made for
Achilles in the Trojan war; it reads : a

“In the market-place
The people were assembled for a lawsuit.

The parties were disputing o'er a fine

Due for a clansman's life, who had been slain.

The killer plead that he had paid the fine,

And to the people told and proved his tale.

The other claimed that he had not been paid.

Both asked for judgment to decide the case.

Anon loud clamor favored each in turn,

For each had eager friends among the crowd,

And heralds held in check the noisy throng.

The elders of the tribe, on polished stones
Ranged round the center, sat and gravely heard.

Then, with a herald's scepter in his hand,

Each elder rose, and in his turn proposed
The judgment he advised. And in the midst
Two golden talents lay, to be the fee
Of that wise elder who should speak
The fairest judgment on the pending case."

Here we see the democratic type of justice, precisely
as in the primitive Germanic period, one thousand years
later; the parties plead their cause before the assembly of
freemen; the chief presides as umpire; then the wise
elders, skilled in the law, propose various judgments;

[288]

1. Justice Secular and Democratic

lilt'll (lit* freemen acclaim (lit* best one anti thus decide
(lie case.

Themis, the goddess of justice, plays a prominent part
in (ireek literature; for the Greeks, though lacking politi-
cal unity, had a common civilization and mythology.
Themis was a consort of Zeus, and her two daughters were
Dike, or morality and divine law, and Eunomia, or law
and order. The Greek word “themis” and our word
“doom”, a judgment, are the same in etymology, and
“deemster”, or “doomsman”, in the English Isle of Man
is still the term for “judge”. The goddess Themis had a
temple of her own, 2 located near the famous plain of
Marathon; the marble chair on the right was for Themis,
on the left for Nemesis; and the statue of Nemesis, seen
dimly within the temple, was made by Phidias the great
sculptor.

The spirit of Greek justice, however, in classical times,
was not theocratic, as in the earlier Oriental systems al-
ready described, but was secular; and civic officials, not
priests, administered it.

2. The organization of justice, and the jurisdiction
of the various courts, at Athens, changed from time to
time, with the political fluctuations between democracy
and oligarchy; but its spirit, after the reforms of Solon,
and especially at the typical periods of Pericles (B. C. 450)

[289]

2. Trial Mr! hod

VI. 2 — Temple of Themis

This temple was near the plain of Marathon. The marble chair
on the right was for Themis, on the left, for Nemesis, and
the statue of Nemesis is seen within

and of I )('inosl Ik'iu'h (B. ('. ;{f>()), was essentially demo-
cratic.

The 'trial met hod then was only an advanced form of
the early one, in the tribal assembly, depicted by Homer
on the shield. At Athens, each year a jury-list of six
thousand or more names was made up. For ordinary
cases, a panel of two hundred and one names (at another
period, five hundred and one names), drawn by lot,
might suffice; but for special cases the panel might be as
many as one thousand or fifteen hundred or even twenty-
five hundred jurymen. In Socrates’ trial (about B. C.
400) five hundred and one jurors voted; and he was found
guilty by a majority of only sixty. b

Under the system instituted by Solon, as it ultimately
developed, an Athenian trial was entirely in the hands of
non-professionals. The presiding magistrate was selected
by lot, the jurors were drafted from the whole citizen
body, any citizen could be prosecutor, and the defendant
conducted his own case.

There were magistrates who supervised the prelimi-
nary proceedings; but at the trial, the magistrate was no
more than a chairman of a public assembly. There was
no presiding judge, to declare the law authoritatively.
There was no appeal, in the modern sense. The citizens
were the whole court, — judges of law and of fact, without

[ 290 ]

[ 291 ]

V I. Greek Legal System

control. There was no jury-deliheration. After the
evidence and speeches, all filed out, casting their ballots
in the verdict-urn as they departed.

The trial of Socrates, above referred to, was (what we
should call) a criminal prosecution. In such prosecutions,
the penalty was for some classes of cases fixed beforehand
by law (or by agreement), and for others was left to the
jury to determine; Socrates’ offences — impiety and the
corruption of youth — were of the latter sort. In such
cases, the first verdict pronounced upon guilt only; and
if the verdict was guilty, a second hearing and vote took
place to determine the penalty. It was between these
votes that Socrates (in Plato’s report) delivered his
celebrated speech on the penalty due him. In its noble
nonchalance, it is unequalled. Socrates calmly declared,
to the jurors who had condemned him, that he did not
fear their highest penalty — death; for, he said, “the dif-
ficulty, my friends, is not in avoiding death, but in avoid-
ing unrighteousness; for that pursues us faster than
death”. — Socrates was the expounder (though not the
inventor) of the great art of cross-examination as a mode
of extracting truth; an art which the philosophers, in
modern times, have misguidedly abandoned to the law-
yers. And even during those thirty days of imprisonment
that elapsed before the fatal cup of hemlock was handed
to him,» and while he sat in chains, conversing with his

[ 292 ]

VI. 3— Socrates in Prison, Drinking the Fatal Hemlock

disciples in those masterpieces of dialogue transmitted to
us by Plato, we find him still shrewdly and genially
wielding that wonderful weapon of cross-examination, in
discussing the immortality of the human soul.

3. Athenian law and justice had come to turn es-
sentially on the jury-system, and it was elaborately or-
ganized, in the city’s constitution. So dominant is this
feature, for making any estimate of Greek law and justice,
that Aristotle’s detailed account of the procedure must
here be quoted. This text of Aristotle’s monograph on
the “Government of Athens”, lost for more than two

[ 293 ]

V L (i reek Legal System

thousand years, came to light some forty years ago, in
a papyrus discovered in Egypt (under strange circum-
stances never yet fully revealed in print) ; and that portion
of the fragments describing the jury-system was com-
pletely reconstructed only in 1903, and published in
translation only In 1920. 4 It reads as follows: 0

[Aristotle's Account of the Jury-System.] “Ch. 63. [Drawing the
Juries by Lot.] The juries for the law-courts are chosen by lot by
the nine Archons, each for their own tribe, and by the clerk to the
Thesmothetae for the tenth. There are ten entrances into the
courts, one for each tribe; twenty rooms in which the lots are
drawn, two for each tribe; a hundred chests, ten for each tribe;
other chests, in which are placed the tickets of the jurors on whom
the lot falls; and two vases. Further, staves, equal in number to the
jurors required, are placed by the side of each entrance; and coun-
ters are put into one vase, equal in number to the staves. These
are inscribed with letters of the alphabet beginning with the eleventh
(lambda), equal in number to the courts which require to be filled.
All persons above thirty years of age are qualified to serve as jurors,
provided they are not debtors to the state and have not lost their
civil rights. If any unqualified person serves as juror, an informa-
tion is laid against him, and he is brought before the court; and, if
he is convicted, the jurors assess the punishment or fine which they
consider him to deserve. If he is condemned to a money fine, he
must be imprisoned until he has paid up both the original debt, on
account of which the information was laid against him, and also the
fine which the court has imposed upon him. Each juror has his
ticket of boxwood, on which is inscribed his name, with the name of
his father and his city-ward, and one of the letters of the alphabet
up to kappa;* for the jurors in their several tribes are divided into

*[The tenth letter of the alphabet. Thus the whole body of jurors was divided into ten
sections, indicated by the letters from alpha to kappa; and the courts for which jurors were re-
quired were indicated by the requisite number of letters from lambda onwards.]

[ m ]

[295 ]

VI. 4 — Aristotle’s Treatise on the Government of Athens

yi. Greek Lena! System

ten sections, with approximately ail equal number in each loUer.
When the Thesmothetes has decided by lot which letters are re-
quired to attend at the courts, the servant puts up above each court
the letter which has been assigned to it by the lot.

u Ch. 64. [Assigning the Juries to the Different Courts.] The ten
chests above mentioned are placed in front of the entrance used by
each tribe, and are inscribed with the letters of the alphabet from
alpha to kappa. The jurors cast in their tickets, each into the chest
on which is inscribed the letter which is on his ticket; then the ser-
vant shakes them all up, and the Archon draws one ticket from each
chest. The individual so selected is called the Ticket-hanger, and
his function is to hang up the tickets out of his chest on the bar
which bears the same letter as that on the chest. He is chosen by
lot, lest, if the Ticket-hanger were always the same person, he might
tamper with the results. There are five of these bars in each of the
rooms assigned for the lot-drawing. Then the Archon casts in the
dice and thereby chooses the jurors from each tribe, room by room.
The dice are made of brass, coloured black or white; and according
to the number of jurors required, so many white dice are put in, one
for each five tickets, while the remainder are black, in the same
proportion.* As the Archon draws out the dice, the crier calls out
the names of the individuals chosen. The Ticket-hanger is included
among those selected. Each juror, as he is chosen and answers to
his name, draws a counter from the vase, and holding it out with the
letter uppermost shows it first to the presiding Archon ; and he, when
he has seen it, throws the ticket of the juror into the chest on which
is inscribed the letter which is on the counter, so that the juror must
go into the court assigned to him by lot, and not into one chosen by
himself, and that it may be impossible for any one to collect the
jurors of his choice into any particular court. For this purpose

♦[Thus the process of selection is as follows: The Ticket-hanger arranges all the tickets

on a bar, which establishes their order. Then the Archon draws a die; if it is white, the owners
of the first five tickets on the bar serve on the jury, while if it is black they are rejected; and so
on through the whole number. The selected jurors are then assigned to the several courts in
accordance with the lots drawn from the vases.]

J. Jury Procedure

clicsls ;ir<“ plnccil nrar 1 lit* Archon, ns many in number as there are
rniirts In lx* lillcd dial day, bearing die letters of (lie courts on which
I Ik* lol lias lallcn.

"The juror (hereii|»oii, afler showing his counter again to the
,i l U'liilan t , passes through the barrier into the court. The attendant
gives him a stall of the same colour as the court bearing the letter
which is on his counter, so as to ensure his going into the court
assigned to him by lot; since, if he were to go into any other, he
would be betrayed by the colour of his staff. Each court has a
certain colour painted on the lintel of the entrance. Accordingly
the juror, bearing his staff, enters the court which has the same
colour as his staff, and the same letter as his counter. As he enters,
he receives a voucher from the official to whom this duty has been
assigned by lot. So with their counters and their staves the se-
lected jurors take their seats in the court, having thus completed the
process of admission. The unsuccessful candidates receive back
their tickets from the Ticket-hangers. The public servants carry
the chests from each tribe, one to each court, containing the names
of the members of the tribe who are in that court, and hand them
over to the officials assigned to the duty of giving back their tickets
to the jurors in each court, so that these officials may call them up
by name and pay them their fee.

“Ch. 66. [Organizing the Court.] When all the courts are full,
two ballot boxes are placed in the first court, and a number of
brazen dice, bearing the colours of the several courts, and other dice
inscribed with the names of the presiding officials. Then two of the
Thesmothetae, selected by lot, severally throw the dice with the
colours into one box, and those with the officials’ names into the
other. The official whose name is first drawn is thereupon pro-
claimed by the crier as assigned for duty in the court which is first
drawn, and the second in the second, and similarly with the rest.
The object of this procedure is that no one may know which court
he will have, but that each may take the court assigned to him by
lot.

[296]

[297]

VI. Greek Legal System

"When the jurors have come in, and have been assigned to l heir
respective courts, the presiding official in each court draws one
ticket out of each chest (making ten in all, one out of each tribe),
and throws them into another empty chest. He then draws out five
of them, and assigns one to the superintendence of the water-clock,
and the other four to the telling of the votes. This is to prevent any
tampering beforehand with either the superintendent of the clock or
the tellers of the votes, and to secure that there is no malpractice in
these respects. The five who have not been selected for these duties
receive from them a statement of the order in which the jurors shall
receive their fees, and of the places where the several tribes shall
respectively gather in the court for this purpose when their duties
are completed; the object being that the jurors may be broken up
into small groups for the reception of their pay, and not all crowd
together and impede one another.

"Ch. 67. [Conduct of the Trial.] These preliminaries being con-
cluded, the cases are called. If it is a day for private cases, the
private litigants are called. Four cases are taken in each of the
categories of actions defined in the law, and the litigants swear to
confine their speeches to the point at issue. If it is a day for public
causes, the public litigants are called, and only one case is tried.
Water-clocks are provided, having small supply-tubes, into which
the water is poured by which the length of the pleadings is regulated.
Ten gallons are allowed for a case in which an amount of more than
five thousand drachmas is involved, and three for the second speech
on each side. When the amount is between one and five thousand
drachmas, seven gallons are allowed for the first speech and two for
the second; when it is less than one thousand, five and two. Six
gallons are allowed for arbitrations between rival claimants, in which
there is no second speech. The official chosen by lot to superintend
the water-clock places his hand on the supply-tube whenever the
clerk is about to read a resolution or law or affidavit or contract.
When, however, a case is conducted according to a set measurement

[ 298 ]

j. Jury Prun'd iut

ul | In* day, In* does not slop llir supply, but each parly receives an
c(|ual allowance of water.* The standard of measurement is the

length of the days in (he month Foseideon The

measured day is employed in cases when imprisonment, death,
exile, loss of civil rights, or confiscation of goods is assigned as the
penalty.

“Most of the courts consist of 500 members and

when it is necessary to bring public cases before a jury of 1,000
members, two courts combine for the purpose, while the most im-
portant cases of all are brought before 1,500 jurors, or three courts.
The ballot balls are made of brass with stems running through the
centre, half of them having the stem pierced and the other half

solid . When the
speeches are conclud-
ed, the officials assign-
ed to the taking of
the votes give each
juror two ballot balls,
one pierced and one
solid. 5 This is done in
full view of the rival
litigants, to secure
that no one shall re-
ceive two pierced or
two solid balls. Then
the official designated
for the purpose takes

VI. 5 — Juryman’s Ballot
Each juror received two ballots, marked so as to
indicate plaintiff and defendant. One ballot
he cast into the voting urn, the other
into a discard-urn

away the jurors'

staves, in return for which each one as he records his vote receives a
brass voucher marked with the numeral 3 (because he gets three

*[In ordinary suits, fixed allowances of water (i. e. of time as measured by the water-clock)
were given for each speech, and the time occupied in the reading of affidavits, et f:' H was T
eluded in the allowances, so that the water-clock was stopped while they were read. In more
important cases a certain portion of the day was allotted to either side, without allowance for the
time occupied by reading documents.!

[ 299 ]

y /. Greek Gc^al System

obols when he gives it up). This is to ensure that all shall vote; since
no one can get a voucher unless he votes. Two urns, one of brass
and the other of wood, stand in the court, in distinct spots so that no
one may surreptitiously insert ballot balls; in these the jurors record
their votes. The brazen urn is for effective votes,* the wooden for
unused votes; and the brazen urn has a lid pierced so as to take only
one ballot ball, in order that no one may put in two at a time.

“When the jurors are about to vote, the crier demands first
whether the litigants enter a protest against any of the evidence; for
no protest can be received after the voting has begun. Then he pro-
claims again, ‘The pierced ballot for the plaintiff, the solid for the
defendant’; and the juror, taking his two ballot balls from the stand,
with his hand closed over the stem so as not to show either the
pierced or the solid ballot to the litigants, casts the one which is to
count into the brazen urn, and the other into the wooden urn.

“Ch. 69. [ Announcing the Judgment .] When the jurors have

voted, the attendants take the urn containing the effective votes
and discharge them on to a reckoning board having as many cavities
as there are ballot balls, so that the effective votes, whether pierced
or solid, may be plainly displayed and easily counted. Then the
officials assigned to the taking of the votes tell them off on the board,
the solid in one place and the pierced in another, and the crier an-
nounces the numbers of the votes, the pierced ballots being for
the prosecutor and the solid for the defendant. Whichever has the
majority is victorious; but if the votes are equal the verdict is for
the defendant. Then, if damages have to be awarded, they vote
again in the same way, first returning their pay-vouchers and re-
ceiving back their staves. Half a gallon of water is allowed to each
party for the discussion of the damages. Finally, when all has been
completed in accordance with the law, the jurors receive their pay
in the order assigned by the lot.”

*[i. e. those which record the juror's actual vote. Each juror receives two ballots and uses
and throws d the“the?“way!? g “ h * VOt€S f ° r the Dlaintiff or th * defendant) to record hie vote.

.i. Jury V rote dure

J ury-fri.il, as (bus organized, was much more than our
modern expedient for determining private claims and
ordinary criminal charges. It was also, in effect, a chief
engine for controlling the government. In a variety of
ways, unknown to modern States, almost any issue of
|X)litics or administration or civic duty could under the
Athenian constitution be submitted to a jury- trial; and
any citizen could in virtually any case institute such a
proceeding. Except during holiday periods or military
operations, these jury-courts with their thousands of
jurors were in almost constant session. Under Pericles,
the practice of compensating jurors with a fee was intro-
duced, and in the ensuing century a willing citizen might
almost rely upon jury service for a regular income. The
reproach of litigiousness, often levelled at the Athenians,
may have been unjust, in view of all the circumstances.
But trial by mass-jury was certainly a most prominent
feature of their civic life. In Aristophanes’ comedy of the
“Clouds”, a visitor in the clouds, when pointed out the
city of Athens on the map, replies, “I don’t believe it, for
I see no juries sitting”.

No contemporary eye-witness account of an Athenian
jury- trial is extant. The trial-scene in Aristophanes is
too obviously exaggerated to be typical. But a fair im-
pression of the ordinary trial-day may be gained from

[ 300 ]

[ 301 ]

V /. Greek Legal System

Lucian’s clever skit entitled “The Double Indictment’’,
The famous cosmopolite and wit, Lucian, beginning as an
advocate, had first reached eminence in the ranks of
Oratory; but then, changing his style, had cultivated the
Dialogue. This style, hitherto reserved for the philoso-
phers, he had used in a semi-dramatic form, as a vehicle of
satire. Being reproached, first, by the orators, for desert-
ing them, and then by the philosophers, for maltreating
their literary prerogative, he revenged himself on both
camps with this drama-dialogue, in which he represents
himself as sued by both Oratory and Dialogue. The
scene is a trial-day at Athens; Zeus, overwhelmed with the
world s business, but stung by the complaints of the
Athenians about the delays in litigation, has decided to
allot a day to clearing up the court-calendar. So he orders
his daughter Dike (Justice), with Hermes (as clerk) to go
down to Athens for the purpose : cc

W Trial-Day in Athens.] “ Zeus {to Hermes). Fly down and
proclaim that there will be a session of court under the following
regulations : All who have entered suit are to come to the Areopagus
today; at that place Justice is to empanel juries for them out of the
entire body of Athenians, the number of jurymen to depend upon
the penalty involved ; and if anyone thinks that his hearing has been
unjust, he is to be allowed to appeal to me and have the case tried
afresh, just as if it had not been tried at all. (To Justice) Daughter,
take your place beside the Dread Goddesses [the Eumenides]!
empanel the juries and supervise the trials

[802]

.i. Jury I* rove dure

“Hermes. < )ycz, <>vcz ! I hidcr I lu‘ Messing of Heaven, we shall
hold a session of rouri lodny, l lie seventh of the month Elaphe-
holion. All who have entered suits are to eome to the Areopagus,
where Justice will empanel the juries and be present in person at the
trials. The jurors will be drawn from the entire body of Athenians;
the pay will be three obols a case, and the number of jurors will be
in accordance with the charge. All those who have entered suits
but have died before they came to trial are to be sent back to earth
by Aeacus. If anyone thinks he has had an unjust hearing, he is to
appeal the case, and the appeal will be to Zeus.

“ The God Pan. Heavens, what a hubbub! What a shout they
raise, Justice, and how eagerly they are gathering at a run, drag-
ging each other up the hill, straight for the Areopagus! Hermes,
too, is here already; so busy yourselves with the cases, empanel your
juries and give your verdicts as usual . . . . . .

“ Hermes . Come, Justice, let’s call them to the bar.

“ Justice . Quite right. Indeed they are approaching in crowds,
as you see, with a great noise, buzzing about the hilltop like wasps.

“ Athenian . I’ve got you, curse you!

“ Second Athenian . You are a blackmailer!

“ Third Athenian. At last you are going to pay the penalty!

“ Fourth Athenian. I will prove that you have committed
horrible crimes !

“ Fifth Athenian. Empanel my jury first!

“Sixth Athenian. Come to court with me, scoundrel!

“Seventh Athenian. Stop choking me!

“Justice. Do you know what we ought to do, Hermes? Let
us put off the rest of the cases until tomorrow, and today let us pro-
vide only for those entered by professions or pursuits or sciences
against men. Pass me up the writs of that description.

“Hermes. Intemperance v. the Academy, in re Polemo: kid-
napping.

[303]

J. Jury Prove dure

A /. (ireek I jegal System

“Justice. Draw seven jurors.

“Hermes. Stoa v. Pleasure: alienation of affections— because
Pleasure coaxed away Her lover, Dionysius.

“ Justice . Five will do.

“Hermes. High-living v. Virtue, in re Aristippus.

“Justice. Let five sit in this case too.

“ Hermes . Banking v. Diogenes: absconding.

“ Justice. Draw only three.

“Hermes. Painting v. Pyrrho : breach of contract.

“Justice. Let nine sit on jury.

“Hermes. Do you want us to provide juries for these two cases
also, recorded yesterday against the public speaker?

Justice. Let us finish up the cases of long-standing; these can
go over until tomorrow for trial. ,

“Hermes. Why, these are of the same nature, and the com-
plaint, although recent, is very like those for which we have already
provided juries, so that it ought to be tried along with them.

Justice. You appear to have been unduly influenced to make
the request, Hermes. Let us make the drawing, however, since you
wish; but only for these two cases; we have enough on the docket.
Give me the writs.

“Hermes. Oratory v. the Syrian: neglect. Dialogue f. the
same: maltreatment.

Justice . Who is this man, the Syrian? His name is not
recorded.

Hermes. Empanel a jury for him as it stands in the writ —
for the public speaker, the Syrian [i. e. Lucian]. There is nothing to
hinder its being done anonymously.

Justice. Look here, are we really to try cases from over the
border here in Athens, on the Areopagus? They ought to have been
tried on the other side of the Euphrates. However, draw eleven
jurors, the same men to sit for both cases.

[ m ]

44 Hermes . You an* riglil, Juslicc, lo avoid spending loo much
in jury-fees.

44 Justice . Lei the first jury .sit, in the case of Intemperance v.
the Academy. Fill the water-clock. Plead first, Intemperance
.... Why does she hold her tongue and shake her head? Go
her and find out, Hermes.

“Hermes. She says that she cannot plead her case because her
tongue is tied with drink and she is afraid of getting laughed at in
court. She can hardly stand, as you see.

“Justice. Then let her have an advocate appear, one of these
public pleaders. There are plenty of them ready to split their lungs
for three obols!

“Hermes. But not one will care to espouse the cause of In-
temperance, not openly, at any rate. However, this request of hers
seems reasonable.

“Justice. What request?

“Hermes. 4 The Academy’, she says, 4 is always ready to argue
on both sides and trains herself to be able to speak eloquently both
pro and con. Therefore let her plead first for me, and then after
that she will plead for herself.’

“Justice. That is unprecedented. Nevertheless, make both
speeches, Academy, since it is easy for you.

“Academy. Listen first, gentlemen of the jury, to the plea of
Intemperance, as the water now runs for her.

“The poor creature has been treated with the greatest injustice
by me, the Academy. She has been robbed of the only friendly and
faithful slave she had, who thought none of her orders unbecoming,
Polemo yonder, who used to go roistering through the middle of the
square in broad day .... I have said about all that there is to
say for Intemperance. Now I will speak for myself, and from this
point let the water run for me.

[ 305 ]

VI. Greek Legal System

“ Justice . What in the world will she say in reply to that?
Anyhow, pour in the same amount for her in turn.

“Academy. Heard casually, gentlemen of the jury, the plea
which the advocate has made in behalf of Intemperance is quite
plausible, but if you give an unprejudiced hearing to my plea also,
you will find out that I have done her no wrong at all.

“This man Polemo, who, she says, is her servant, was not

naturally bad or inclined to Intemperance, At length

he abandoned her then and there, and took up with me, not because
I either invited or constrained him, as this person says, but volun-
tarily, because he believed the conditions here were better. Please
summon him now, that you may see how he has fared at my hands.

He himself is grateful to me for it, as are also his

relatives on his account.

“I have done. It is for you not to consider which of us it was
better for him to associate with.

“Justice. Come, now, do not delay; cast your ballots and get
up; others must have their hearing.

“Hermes. The Academy wins by all the votes but one.

“Justice. It is not at all surprising that there should be one
man to vote for Intemperance. Take your seats, you who have
drawn to hear Stoa v. Pleasure in re a lover. The clock is filled.
You with the paint upon and the gaudy colors, make your plea
now.

“Stoa. I am not unaware, gentlemen of the jury, that I shall
have to speak against an attractive opponent ;

“This is all I have to say, for I am not at all fond of long speeches.
But if she should consent to let me put questions and to give a brief
reply to each, it would very soon be evident that she amounts to
nothing. However, remember your oath and vote in* accordance
with it now, putting no faith in Epicurus, who says that the gods
take no note of what happens among us.

[ 306 ]

J. Jury Procedure

“Justice. Stand aside. Epicurus, speak lor Pleasure.

“Epicurus. I shall not address you at length, gentlemen of the
jury, for I myself do not need many words.

“If Pleasure had used charms or philtres to contrain Dionysius,
whom Stoa claims to be her lover, to desert Stoa, and to centre his
regard upon her, she might fairly have been held a sorceress and
might have been found guilty of using undue influence upon the
lovers of others

“I have done. Cast your ballots with this understanding of the
case.

“Stoa. No, no! Let me cross-question him a little.

“Epicurus. Put your questions; I will answer them.

“Stoa. Do you consider pain bad?

“Epicurus. Yes.

“Stoa. Arid pleasure good?

“Epicurus. Certainly.

“Stoa. Well, do you know the meaning of ‘material’ and ‘im-
material’, of ‘approved’ and ‘disapproved’?

“Epicurus. Certainly.

“ Hermes . Stoa, the jurors say they can’t understand these
dissyllabic questions, so be silent; they are voting.

“Stoa. I should have won if I had put him a question in the
form of the ‘third indemonstrable’.

“Justice. Who won?

“Hermes. Pleasure, unanimously.

“Stoa. I appeal to Zeus!

“Justice. Good luck to you! Hermes, call another case.

“Hermes. Virtue v. High -living, in re Aristippus. Let Aristip-
pus appear in person.

[ 307 ]

I ' I. Greek Legal System

“Virtue. I ought to speak first; I am Virtue, and Aristippus
belongs to me, as his words and his deeds indicate.

“High-living. No, indeed; I ought to speak first; I am High-
living, and the man is mine, as you can see from his garlands, his
purple cloak and his perfumes.

“Justice. Do not wrangle; this case will stand over until Zeus
decides the case of Dionysius, for this seems to be similar. Conse-
quently, if Pleasure wins, High-living shall have Aristippus, but if
Stoa prevails, he shall be adjudged to Virtue. So let others appear.
Look here, though — these jurors are not to get the fee, for their case
has not come to trial.

“Hermes. Then are they to have come up here for nothing, old
as they are, and the hill so high?

“Justice. It will be enough if they get a third. Go your ways;
don’t be angry, you shall serve another day.

“ Now call the speech-writer, the Syrian.

After all, it was only recently that the writs were lodged against
him, and there was no pressing need to have tried the cases now.
However, since that point has been decided, take the suit of Oratory
first. Heavens, what a crowd has come together for the hearing!

Hermes. Naturally, Justice. The case is not stale, but new
and unfamiliar, having been entered only yesterday, as you said,
and they hope to hear Oratory and Dialogue bringing charges in
turn and the Syrian defending himself against both; this has
brought crowds to court. But do begin your speech, Oratory.

“Oratory. In the first place, men of Athens, I pray the gods
and goddesses one and all that as much good will as I steadily enter-
tain toward the city and toward all of you may be shown me by you

in this case But not to prolong my introduction when

the water has been running freely this long time, I will begin my
complaint.

[ 308 ]

Jury Procedure

“When (his nun vvus ;i mnv boy, gentlemen of (he jury, still
speaking wi(h a foreign accent and I might almost say wearing a
caftan in tin* Syrian style, I found him still wandering about in
Ionia, not knowing what to do with himself; so I took him in hand
and gave him an education Then, after we were mar-

ried, 1 got him irregularly registered among my own clansmen and
made him a citizen, so that those who had failed to secure my hand
in marriage choked with envy Is he not, then, un-

grateful and subject to punishment under the laws that concern
desertion, inasmuch as he so disgracefully abandoned his lawful
wife? .... I have finished, gentlemen of the jury. But I beg
you, if he wishes to make his defence in my style of speaking, do not
permit that

“Hermes. That is unreasonable. It is not possible, Oratory,
for him, all by himself, to make his defence after Dialogue’s manner.
Let him make a speech as you did.

“The Syrian [Lucian.] Gentlemen of the jury, as my opponent
was indignant at the thought of my using a long speech when I
acquired my power of speaking from her, I shall not say much to
you, but shall simply answer the main points of her complaint and
then leave it to you to weigh the whole question. In all that she told
about me she told the truth. She gave me an education and went
abroad with me and had me enfranchized as a Greek, and on this
account, at least, I am grateful to her for marrying me .....
I could not stand this, and as I did not think it best to bring an
action for divorce against her on the ground of adultery, I went to
Dialogue, who lived near by, and requested him to take me in.

"This is the great injustice that I have done Oratory ....

"Though I have much to say, I will stop now. Cast your vote
in accordance with your oath.

{The votes are counted.)

“ Justice . Who is the winner?

[ 309 ]

.1. Jury Procedure

VI. Greek Legal System

“Hermes. The Syrian, with every vote bill one.

“Justice. Very likely it was an orator-speaker who east (he
vote against him. Let Dialogue plead before the same jury. {To
the jurors) Wait, and you shall get double pay for the two cases.

“Dialogue. For my part, gentlemen of the jury, I should prefer
not to make you a long speech, but to discuss the matter a little at a
time, as is my wont. Nevertheless I will make my complaint in the
way that is customary in courts of law, although I am completely
uninformed and inexperienced in such matters. Please consider this
my introduction.

“The wrongs done me and the insults put upon me by this man

are these Have I not been dreadfully maltreated,

when I no longer occupy my proper role but play the comedian
and the buffoon and act out extraordinary plots for him? .....

“Hermes. What are you going to say to this, Master Syrian?

“The Syrian [Lucian.] Gentlemen of the jury, the suit that I
am contesting now before you is unexpected. In fact, I should have
looked for anything else in the world sooner than that Dialogue
should say such things about me ......

“I have made the best defence that I can. Please bring the
same verdict as before.

{The votes are counted.)

“Hermes. Well, well ! You win with ten votes! The same one
who voted against you before will not vote with the rest even now.
Without doubt it is a habit, and that man always casts the ballot
[for guilty] that has a hole in it. I hope he will keep on envying men
of standing. Well, go your ways, and good luck to you. Tomorrow
we will try the rest of the cases.”

This unique institution of a bench of lay-citizens — a
virtual mass-meeting — doing justice as judges both of law
and fact, naturally raises a question as to their compe-

Irnry. Mow did law and justice larc at their hands? A
learned editor of Demosthenes' orations has offered some
shrewd comments, in answer ? 1

“With respect to the ability of the Athenian jurors to perform
( lu* judicial duty imposed on them, there is a good deal to be said on
both sides. That they should perform it in a thoroughly business-
like* manner, or so as to fulfill what may have been Solon’s con-
ception of the trust confided to them, was hardly in the nature of
things. They had to administer justice according to the written
law, and of course to interpret that law; where there was no written
statute, they were bound to decide according to the best of their
ability; that is, in the absence of any express legislative provision,
(hey were required to apply the general principles of law and justice
to the case before them. They were also sole judges of the facts of
(*very case. They were persons of no legal education or learning;
taken at haphazard from the whole body of citizens, and mostly be-
longing to the lowest and poorest class of them. — On the other hand,
the Athenians were naturally the quickest and cleverest people in
the world. Their wits were sharpened by the habit of attending the
theatres and public assemblies, of taking an active part in important
debates, and hearing the most splendid orators. There was so much
litigation at Athens, that they were constantly either engaged as jur-
ors, or present as spectators in courts of law. Cases of all varieties
were brought before them, involving difficult questions concerning
pedigree and succession, marital and filial right, mercantile and mining
contracts, besides assaults, trespasses, frauds, and criminal charges
of every description. Then they lived an out-of-door life, con-
stantly meeting in the market-place or elsewhere, hearing foreign
news, discussing politics, etc. All this was a sort of education, and
if not the best, still it fitted the people in some measure for the per-
formance of the duties we are speaking of .... .

“But would it have been better for the Athenians, if they had
had official and permanent judges to direct and control the jury; to

[ 310 ]

[ 311 ]

VI. ( i reek l x£<i\ System

point out the fallacies, the falsehoods, (lie quibbles and arlilices of
the speakers; and to decide the various points of law which arose?
Such a thing would not only have been incompatible with the spirit
of the constitution, but would not, in my opinion, have promoted
the ends of justice. Under the existing system, a sort of rough
justice was done by the Athenian jurors, and it was owing to their
freedom, and to the free government of the state. Under a different

system, they might have had no justice at all I would

rather try an important case before a thousand independent jurors
without a judge, than before a pliant jury with a judge. We owe all
our liberties to the circumstance that English juries occasionally
displayed a little English obstinacy.”

Whatever inferences we may make as to the practical
merits of this jury-justice, its distinctive constitutional
feature was unique, in that this popular jury was the all-
powerful tribunal of law and justice. Aristotle records
his opinion that in his day (B. C. 325), “the democracy
has made itself master of everything, and administers
everything by its votes in the assembly and in the law-
courts, in which it holds the supreme power.” And a
modern critic emphasizes this diagnosis in terms sig-
nificant to a lawyer: 6

“The real power of the Athenian demos, as he himself well knew,
lay in the courts of law. There was his throne, and there his
sceptre. There he found compliment, court, and adulations rained
upon him so thick, that his imagination began at last to believe
what his flatterers assured him, that he was a god, and not a man.
And a god in some sense he was; for to no earthly tribunal lay there
an appeal from him; his person was irresponsible, his decrees irreversi-

[ 312 ]

J. Jury Procedure

Me; and if ever (here was a despotism complete in itself, ‘pure, un-
sophisticated, dcplilcgmalcd, defecated’ despotism, it was that of an
Athenian court of judicature.”

Whatever may have been the advantage for justice
and equity in particular cases, because of the flexibility of
the Athenian jury’s power, still on the whole the result of
its freedom was to dilute the community’s respect for
settled rules, and to prevent inevitably the development
of a genuine and enduring system of law. And this effect
was due mainly to (1) the lack of a body of professional
judges, declaring the law to the triers of fact; (2) the size
of the juries, identical more or less with the body of
citizen-legislators at large; and (3) the lack of any other
independent body, voicing the settled law, to be a check
upon the citizens either as jurors or as legislators.

The result upon Athenian law has been well char-
acterized by a modern historian, speaking of the period of
Socrates’ trial : f

“The sole guardian of the laws was now the popular courts

The jury courts at Athens were so empanelled (by

the drawing by lot of a large group locally distributed) that the
justice emanating from them was the justice that animated at the
moment the Athenian people. The unlikeness in deciding like cases
which is the essence of injustice must, in these circumstances, have
vitiated legal decisions, if a national familiarity with law had not
been cultivated and sustained by the democratic judicial system.
It also served to steady the action of the courts that, as a result of
discussions carried on for two centuries, citizens had come to possess

[SIS]

VI. Greek Vega I System

4. Civil Litigation

a valuable common stock of juridical ideas. Except for the unique-
ness of their legal education, equity must have broken with strict

law altogether Neither in legal records nor in the

training, learning, and experience of those who held court was there
much hope of previous decisions making themselves felt in deter-
mining verdicts Precedents had no legal standing in

Attic courts. They could not be invoked authoritatively to restrain
the predatory instincts of the jurors when the Athenian people, as in
B. C. 410-405, had become embittered against its citizens of wealth
and standing, by injury, suspicion and misery.

“The consequences were, accordingly, deplorable. A set of
acrid politicians and sycophants, headed by Epigenes, Demophan-
tus, and Cleigenes, encompassed the exile, disfranchisement, or
judicial murder of many persons. Others they blackmailed by

threats of indictment It was in this Athens that Plato

became of age to consider the plan and purpose of his life, and of it
he was probably thinking when long afterwards he wrote that there
was in it ‘but a very small remnant of honest followers of wisdom/
These, he thought, ‘might be compared to a man who has fallen
among wild beasts: he will not be one of them, but he is too unaided
to make head against them; and before he can do any good to
society or his friends, he will be overwhelmed and perish miserably'. ”

4. The procedure of civil litigation in Greece was
elaborately developed; although its details have had to
be reconstructed, by the labors of scholars, from the
copious allusions in the extant orations and inscriptions;
for no treatises are extant (nor perhaps ever existed), and
the original records of litigation that survive are few.

The most interesting and nearly complete one is the
record of a lawsuit about B. C. 100, in the island of Cos.

This w;is nn action lor money brought by the heirs of a
banker named Pausimachos. It seems that Pausimachos
and I lippocrates, two bankers of Cos, had loaned a large
sum of money to the city of Calymna; the loan having
actually been underwritten by other citizens of Cos.

I lippocrates, one of the lenders, had died; his share of the
loan had been one-fifth; and Pausimachos, whose share of
the loan was four-fifths, had also died. But, in the mean-
time, certain payments had been made by the city-debtor
to the heirs of Hippocrates. The heirs of Pausimachos
now claimed from the city of Calymna the payment of
their share, on the ground that the former payments
should not be credited, because the loan was not a joint
loan, but a several one, and the payments to the heirs of
Hippocrates could not be credited against the share of the
heirs of Pausimachos. The dispute having been referred,
by arbitration, to the disinterested city of Cnidos, the
trial was to take place before the popular jury of Cnidos,
which in this case numbered two hundred and four jury-
men. The following is the record of the trial, setting
forth the procedure as determined by the councillors and
assembly of Cnidos, and then the judgment: 8

[i Civil Action at Cnidos .] “[1] [Rules of Procedure.] The coun-
cillors of Cnidos will administer the oath to the jurors as follows:
‘I swear by Jupiter, by the Lucian Apollo, and by the Earth, that
I will decide in the case now at issue between the parties, according

[314]

[ 315 ]

y I. Greek Legal System

to what shall seem to me most just. I will not deride merely on (lie
word of any one witness, if that witness does not appear lo me lo
speak the truth. I have not received any gift in connection with
this suit, neither I nor any one for me, man or woman, directly or
indirectly. May I prosper if I keep my oath, but may disaster
strike me if I perjure myself!'

“[2] The city ordinances, the summonses, and all other docu-
ments that it may be necessary to withdraw from public custody
shall be presented to the court by the respective parties but sealed
with the seal of the respective cities, in such form as the respective
cities shall determine by law. They shall be delivered by the parties
to the councillors of Cnidos, and the latter, after breaking the seals,
shall take out the documents and deliver them to each of the parties
upon the opening of court. Each of the parties shall produce the
depositions before the trial opens.

“[3] The time for delivery of speeches shall be limited to eight-
een clock-measures for each of the parties for the first speech and
to ten clock-measures for the second. Each of the parties may bring
not more than four attorneys. The attorneys may also be wit-
nesses.

“[4] The city ordinances, the summonses, the written formula
for the suit, and all other documents taken from public custody
shall be read by the clerk furnished by the respective parties, and
also the depositions, and during this reading the clock shall be
stopped.

“[5] As to witnesses, those who are able to be present in person
shall give testimony personally before the court; those who are not
able to be present in person shall give their testimony to an officer
appointed in the respective cities on the 24th day of the month
known as Batromios at Calymna and as Caphisios at Cos, in the
presence of the opponents, if the latter wish to be present. Wit-
nesses before testifying shall take the oath prescribed by law, viz.
that they will tell the truth and that they are unable to attend the

f 316 1

V. Givi I Litigation

h ijil. The deposit inns lluis taken belnre such officers shall he sealed
by (lie la Iter under public seal, and counlerscaled by tile respective
parlies, if I hey desire. Copies of these depositions shall be promptly
delivered to the parlies by the officers. Copies of all depositions
received at (.'os shall be sent by the officers, some of them sealed
under public seal, and others not sealed, to the officials of Calymna
within twenty days after taking the deposition, and similarly the
officers of Calymna shall send copies of all depositions taken before
t hem at Calymna, some sealed under public seal and others not
sealed, to the officers of Cos, within twenty days after taking the
deposition ; and besides, the said officers for such depositions shall
do all that ought to be done by the officers of Cos. Citizens of
Calymna who go to Cos to be present at these inquiries shall receive
from the city of Cos a safe-conduct. The councillors of Cos shall
accord to the respective parties at the trial the right to put questions
to the witnesses separately, after the opening speeches. The parties
may interrogate the witnesses on matters relevant to this lawsuit,
but not on other matters.

“[6] If the parties do not finish respectively their speeches
within the time limited as above, they are not to speak beyond the
moment when the water is entirely emptied from the clock. Upon
the completion of the speeches, the councillors shall distribute im-
mediately the voting ballots.

"[7] [The Claim] .... Aristodamos, son of Aglaostratos
.... children of Diagoras [son of Pausimachos] against ....

in the presence of the councillors of Cnidos claims as

follows: making first a deduction on the loan of Pausimachos and
Hippocrates for the money paid in the mayoralty of Alkimachos,
and also of the talent which the Calymnians claim was paid to them
by Pausimachos and Cleomedes; making deduction also for the
precious vessels and the forests [given as security for the loan, and
realized on by sale] and of the fifth part of the payments which the
Calymnians claim to have made to Pausimachos and to Cleomedes

[ 317 ]

F /. Greek Legal System

[son of Hippocrates], pursuant to the agreement which (hey claim
to have entered into with Pausimachos and Cleomedes, the whole of
which, however, is disputed by the heirs of Cleomedes (and from all
these payments must be omitted the part applicable to the loan of
Hippocrates) ; and deducting finally the larger sum which the
Calymnians claim to have paid to Cleomedes, and also all other
payments mentioned in the communication sent by the city of Cos
to the city of Calymna, and received by the agents who had gone to
Cos, viz. [giving five names], in which we have written down these
payments, crediting them to the assets of the heirs of Hippocrates
in the accounting for sums due to Hippocrates by the Calymnians,
from and after the month Caphisios of the year when Hermonax
was in office:

“We claim the balance of this account, reckoned with interest
for the share belonging to us. But the Calymnians refuse to pay it,
claiming that they have already paid it with interest to Cleomedes,
son of Hippocrates, and to Cleophantos, son of Cleomedes.

“Total sum claimed by us: thirty talents [about $36,000].

“[8] [Judgment.] A vote of judgment being taken, it appeared
from the ballots that there were 78 in favor of the claim and 126.
against it. Done the 17th day of the month of Elaphrios in the
Mayoralty of Alkimachos.

“Attorneys, for the children of Diagoras, Philinos, son of
Diodes of Cos; and for the city of Calymna, Hecatonymos, son of
Prytanias of Myletus, Exakestos, son of Alkinoos of Calymna,
Aratophantos, son of Aristolas of Calymna.”

5. The places at which trials were held varied for
different classes of cases and at different periods. At
Athens, the Agora, 6 or market-place, the Areopagus Hill,
and the Pnyx Hill were the chief places of interest for law
and politics.

[ 318 ]

VI. 6 — The Market-Place at Athens

In this Agora the Assembly often was held, and the smaller trial-courts met in various porticos surrounding it

5 . Places of Trial

I wen al Athens, the most highly developed of the
city-states, in its classic period, justice though secular had
not reached that advanced stage of modern nations in
which justice is sharply separated from general politics.
Below, in the market-place, were held occasionally the
meetings of the popular Assembly, or Ecclesia, and the
Assembly not only enacted laws but sometimes tried
l>oli(ieal offences. This papyrus , 7 for example, discovered
only twenty years ago, is a fragmentary passage from the
historian Apollodorus, describing a trial in the market-
place. It was the celebrated prosecution of Phidias for
embezzling some of the ivory that had been entrusted to
him for making the world-famous statue of Athena. The
statue was composed all of gold and ivory . 8 Phidias had
received the order to make this for the Parthenon Temple.
Pericles, the great statesman who beautified Athens
architecturally, had given Phidias a free hand in the pur-
chase of materials. But a jealous workman laid an in-
formation for embezzlement. Pericles’ political enemies
pushed the prosecution zealously; and though the scandal-
ous charge proved groundless, it ended the great sculptor’s
career at Athens.

But usually the Assembly met on the hill called Pnyx;
it was there that Pericles, and other famous statesmen,
moved the assemblies with their eloquence; and it was

[ 319 ]

VI. 7 — The Trial of Phidias

This fragment of a papyrus contains an account of the trial of Phidias
for embezzling the ivory furnished him for the statue of Athena

[ 320 ]

' Athena
iade by P
ng some ■

II. (! reek Lean! System

there in the open air, under the warm blue Greek sky, be-
fore the massed multitudes, every citizen being a legis-
lator, that the great art of political oratory was first de-
veloped in the world’s history. »

Another hill, the Areopagus, was sacred to the legend
of Orestes, and in the earlier period this was the special
place for certain trials for homicide. In the legend,
Orestes had deliberately killed his adulterous mother, and
was brought to trial; the Furies or Avengers were the
prosecutors: the goddess Athena presided; she had frankly

declared
herself
ready to
cast the de-
ciding vote
in his favor.
H owever,
the jurors
a cquitted
him ; 10 and
Orestes, in
gratitude,
then erect-

... , ri „ „ „ ed a memor-

VI. 10 — The Trial of Orestes

The jurymen are seen on the right, casting their ballots 13.1 clltclX to

[ 882 ]

Co

>

Pericles Addressing the Assembly on the Pnyx

5 . Wares of Trial

justice; ; 1 1 x I here mol I lit* onoo supremo (rihimal of the
Areopagus, or Senate of One I lundred, as ordained in the
goddess Athena’s words: “This court, majestic, incor-
ruptible, the sleepless watcher of my land I set.”

I ( was on the Areopagus that Paul the Apostle made
his memorable address to the people of Athens, “O men
of Athens, (iod hath made of one blood all nations that
dwell upon the earth”. And it was before the Court of
the Areopagus that the celebrated lawsuit is said to have
been brought, related in the anecdote of the contingent
fee of Protagoras, the teacher of oratory. He made a con-
tract with his pupil Evalthus that his fee should be pay-
able when the young man won his first lawsuit. After a
while the lessons ceased and the teacher pronounced him
competent, but the young man insisted that he was not.
So the teacher sued. While waiting for trial, the teacher
said to his friends: “I win, either way; for if the judgment
is for me, he must pay; but if it is for him, he has won his
first suit and under the contract he must therefore pay.”
But the young man said to his friends, “I win, either way;
for if the judgment is for me, I am not liable; and if the
judgment is against me, I have not yet won my first suit.”
The judges, it is said, were so puzzled by this logical
dilemma, that they adjourned the case for a hundred
years.

[ 323 ]

y I. (h eck Lendl System

6. In the Greek administration of law, the emphasis
was less on the strict rules of law than on the general
justice of the case. This was inevitable, with a purely
democratic judgment rendered alike on law and facts by a
multitudinous popular jury without a presiding judge and
with no appeal of law. It had several marked conse-
quences. For one thing, it led to the development of
forensic oratory.

It is in Greece that this art dawns upon the world.
The speeches of the Greek orators in law cases have been
studied by successive generations of lawyers in every age
and in every country. Indeed, the greater part of the
attainable knowledge of Greek law and justice is founded
on the texts of these orations that have been preserved.
The famous names that come down to us in Greek justice
are not the names of judges or jurisconsults, as in the
Hebrew and the Roman, the English, the Japanese and
the Mohammedan legal systems; but the names of orators.
The very term used for an advocate was not lawyer, or
jurist, but orator, or “speech-writer”; and the spirit of
his whole argument may be inferred from the circum-
stance that in the very first sentence of the speeches of
Lysias and other orators we usually find the identical
apostrophe, familiar to our modern courts, “Gentlemen
of the jury!” (w SvSpei; SuaaTal).

[ 824 ]

(). . Idvot tiles

It was I lu'oivl irally cxiiet'led at Athens (hat a citizen
should plead his own cause; and the “sjjeech-writer was
I he person who composed the sj)eech for him. But litiga-
tion was ixjpular and multifarious; and a professional
class of speech-makers naturally developed. As time
went on, it became allowable for the advocate to deliver a
speech personally in behalf of the client, on one pretext or
another (though not for a fee). But Lysias, who in his
day (say B. C. 440-360) was among the most eminent
advocates of his class, practised almost exclusively by
writing, not delivering, the speeches. Of this extraordinary
man, who is credited with some two hundred and fifty ora-
tions during his career at the bar, tradition has it that
he lost only two cases. An anecdote is told of him that a
client once came back to Lysias, dissatisfied with the
speech that had been written for him to deliver: “When I
read it over the first time”, said the client, “it seemed to
me admirable; but after my second and third rehearsals.it
sounded tame and feeble”. “You must remember”,
replied Lysias, “that the court will hear it only once!”
A saying of Lysias which has verity for all time was this:
“The laws will be no better than the law-makers”.

The Athenian practice of popular justice naturally
permitted and encouraged the advocates to employ all the
ingenious arts of sophistry and emotional appeal which

[ 826 ]

/ /. (I reek Lentil System

would sway a popular court. The rigid control, by
instructions of law and review on appeal, which the judge
in our own modern system is authorized to impose on such
arts, so as to keep the verdict within the bounds of law
and fact, were unknown in that system. The trial of
Phryne comes down to us as a celebrated illustration. 11
The orator here was Hyperides, a pupil and contemporary
of Demosthenes, and some of his speeches have been pro-
nounced to surpass Demosthenes’. Phryne was a cele-
brated woman of pleasure, accused of impiety in pro-
faning the Eleusinian mysteries; the trial took place about
B. C. 340. As the cause progressed, and a verdict of
guilty seemed to impend, Hyperides drew the accused into
full sight before the tribunal, tore aside her tunic, and
bared her breasts (says Athenaeus) “and in a passionate
appeal to the jurors invoked their religious scruples to
have pity on this priestess of Aphrodite”. Phryne was
acquitted; but a law is said to have been passed that
thenceforth the accused should not be placed in the sight
of the jurors at the trial.

Demosthenes may be termed the Daniel Webster of
Athens, for although political history claims him as a
statesman, yet in professional forensic oratory he holds
also a foremost place. A brief passage from one of his
lawsuit-speeches may be quoted here, not as exhibiting

[ 826 ]

VI. 11— The Trial of Phryne

She was defended by the orator Hyperides, who was ranked with Demosthenes by repute

L /. Greek Legal System

the eloquence which his fame imports, but as illustrating
the advanced technique of the Greek advocate in handling
a mixed issue of law and fact before a jury. 12 The case was
that of Darius v. Dionysodorus; the plaintiff demanded
repayment of a loan of 3000 drachmas, made for a voyage
from Athens to Egypt and return, with a cargo of grain,
payable with interest on safe return of the ship to Athens.
(It will be remembered that the speech, though written by
Demosthenes, reads in the first person of the party-
plaintiff) : h

“I am a partner in this loan, gentlemen of the jury. We who
have engaged in maritime trade, and put our money in the hands of
other people, know very well that the borrower has the advantage
over us in every respect. He receives our hard cash without any
mistake, and leaves us a bit of writing and a small scrap of paper
that cost two farthings, containing his covenant to do what is right.
We do not promise to advance our money, but advance it to the
borrower immediately. On what then do we rely, and what se-
curity do we get when we part with our money? We rely on you,
gentlemen of the jury, and on your laws, which declare that what-
ever agreement a man enters into voluntarily with another shall be
valid.

“It seems to me however, that neither laws nor agreements are of
any use, if a person who receives money is not honest in his princi-
ples, and does not either fear or respect the rights of the lender.
Dionysodorus the defendant does neither of these, but has arrived
at such a pitch of audacity, that after borrowing three thousand
drachmas from us upon his ship, on the condition that his ship should
return to Athens, and when we ought to have got back our money
in the season of last year, he carried his ship to Rhodes, unloaded his

[ 328 ]

VI. Creek Legal System

cargo there and sold it in violation of the agreement and of your
laws, from Rhodes again he despatched the ship to Egypt, and from
thence to Rhodes, and even to this day he has never paid us who
lent him our money at Athens, or produced to us our security. He
has now for two years been making use of our funds, keeping the
loan and the trade and the ship that was mortgaged to us, and not-
withstanding this he has come into court, with the intention, I pre-
sume, of mulcting us with the sixth part of the damages, and putting
us in the lodging, besides cheating us out of our money. I therefore,
men of Athens, beseech and implore you all to give me redress, if you
think I have been wronged. Let me first explain to you how the
loan was contracted: that will best enable you to follow the case.

“This Dionysodorus, men of Athens, and his partner Parmenis-
cus, came to us last year in the month of Metageitnion, and said
they wanted to borrow money on their ship, on the terms that she
should sail to Egypt and from Egypt to Rhodes or Athens, and they
engaged to pay interest to either of those ports, as the case might be.
We replied, gentlemen of the jury, that we would not lend to any
other port than to Athens, and so they agree to return here, and
these terms being arranged, they borrow three thousand drachmas
from us upon the ship, on the voyage out and home, and entered
into a written agreement to that effect. In the agreement Pam-
philus, who is here in court, was set down as the lender: I however,
though not named, lent the money jointly with him. And first he
shall read you the agreement

“In pursuance of this agreement, gentlemen of the jury, Diony-
sodorus the defendant and his partner Parmeniscus sent off the ship
from Athens to Egypt. And Parmeniscus sailed with the ship;
Dionysodorus stayed at Athens. For you must know, gentlemen
of the jury, these men were agents and confederates pf Cleomenes,
the governor of Egypt, who, from the time that he received the
government, has done immense mischief to your state, and still more
to the rest of the Greeks, by buying up corn for resale and keeping it

[ 330 ]

(). .Idvomtes

at his own price; mid these men have been acting in league with him.
It was done* in this way. Some ol them shipped off cargoes from
Egypt, while others went out in the trading vessels, and others
stayed at Athens and disposed of the consignments. Then those
who stayed here sent letters to those abroad advising them of the
state of the market, so that, if corn were dear with you, they might
bring it here; if it became cheaper, they might sail to some other
port. It was chiefly owing to such letters and confederacies, gentle-
men of the jury, that the price of corn was raised.

“Well; when these men sent off this ship from Athens, they left
the price of corn here pretty high ; and therefore they submitted to
the clause in the agreement, binding them to sail back to Athens and
to no other port. Afterwards however, gentlemen of the jury, when
the Sicilian vessels had arrived, and the price of corn was falling, and
their ship had got to Egypt, the defendant instantly despatches a
person to Rhodes to inform his partner Parmeniscus of the state of
things here, knowing perfectly well that his ship would be obliged
to touch at Rhodes. The result was that Parmeniscus, the de-
fendant’s partner, having received his letter of advice, and learned
the state of the corn-market at Athens, unships his corn at Rhodes
and sells it there! And thus, gentlemen of the jury, they acted in
defiance of the agreement, and of the penalty to which they had
bound themselves in case of any breach of the agreement, and in
defiance also of your laws, which require ship-owners and mer-
chants to sail to the port which they have agreed to, and subject
them, in default of their so doing, to the severest punishments.

“You have heard, gentlemen of the jury, what Dionysodorus
has done. During the recital of these facts you must have been
wondering, I take it, at his audacity, and what he could possibly
have relied upon in coming to court. Audacity it is indeed, when a
man, having borrowed money from the port of Athens, and having
made an express agreement that his ship shall return to your port, or

f 331 ]

VI. (1 reek Legal System

else that he will pay double the amount, neither has brought his ship
home to the Piraeus, nor pays the lenders their money; and when he
has landed his cargo at Rhodes and sold it there, and notwith-
standing all these acts he dares to look you in the face!

“Now hear what he has to say to this. He says that his ship was
disabled on her voyage from Egypt, and that he was therefore com-
pelled both to touch at Rhodes and to unlade his corn there. And
for proof he alleges, that he chartered vessels from Rhodes and
shipped off some of his goods to Athens. That is one part of his
defence. Another is this — He says that certain other creditors have
consented at his request to take interest as far as Rhodes only, and
it would be hard if we did not consent to the same terms as they did.
Thirdly, he says, that the agreement binds him to pay the money if
the ship arrives safe, and that the ship has not arrived safe in Pi-
raeus. To each of these pleas, gentlemen of the jury, hear my just
reply.

“In the first place, when he says that the ship was disabled, I
think his falsehood is apparent to you all. For, if the ship had really
sustained this disaster, she would neither have got safe to Rhodes
nor have been fit for sea afterwards. She appears however to have
got safe to Rhodes, and again to have been despatched from Rhodes
to Egypt, and at this very time She is sailing everywhere except to
Athens. Is it not monstrous that, when he has to bring the ship
home to the Athenian port, he says She was disabled, but, when he
wants to unlade his corn at Rhodes, then the same ship appears to
be seaworthy? ......

“Upon these points I have said enough. With respect to the
creditors who, they say, have consented to receive from them the
interest to Rhodes, we have nothing to do with that. If any man
has forgiven you any part of a debt, he that you have made terms
with has sustained no wrong. We however have not remitted any-
thing to you, Dionysodorus, nor consented to your touching at
Rhodes. We consider the agreement to be in force, anything to the

6. .-I (Ivor ales

contrary notwithstanding. What says the agreement, and where
does it require you to sail? From Athens to Egypt and from Egypt
to Athens; in default of so doing, it binds you to pay double the
amount. If you have performed this condition, you have done no
wrong; if you have not performed it, and not brought your ship
back to Athens, you are liable to the penalty in the agreement
.... If certain persons have excused you anything, and con-
sented for some reason or other to take interest as far as Rhodes,
does that exempt you from liability to us, with whom you have
committed a breach of your agreement, in landing at Rhodes? I
should hardly think so. The jury are not now deciding upon terms
consented to by others, but upon a contract entered into by you

yourself with us Don’t listen then to this man, when

he attempts to cajole you, and cites his transactions with other
creditors as examples for us; but refer him to the agreement, and to
the rights which spring out of the agreement

“The defendant relies finally upon the fact that the agreement

only requires him to pay the debt if the ship arrives safe

Whose fault is it, gentlemen of the jury, that the ship has not come
safe to Piraeus? Are we to blame, who lent our money expressly on
a voyage to Egypt and to Athens, or Dionysodorus and his partner,
who, having borrowed upon these terms, that the ship should return
to Athens, took the ship to Rhodes notwithstanding? That they
did this voluntarily and not of necessity is clear from many circum-
stances. For, if the occurrence was really involuntary and the ship
was disabled, surely, after they had repaired the ship, they would
not have let her for a voyage to other ports, but would have sent
her off to Athens, and made amends for the involuntary accident

“The facts of the case then, are thus brief and easy to be
remembered. We lent to this Dionysodorus and his partner three
thousand drachmas on a voyage from Athens to Egypt and back; we
have not received payment either of principal or interest; they have

[ 332 ]

[333 1

F /. Greek Legal System

kept possession and had the use of our money for two yeans; (hey
have not even to this day brought home their vship to your port or
delivered it to us. The agreement declares that, if they do not de-
liver to us the ship, they shall pay double the amount, and that the
debt may be recovered from either one or both of them. These
are the grounds upon which we have come into court, seeking to
recover our money through your assistance, as we cannot get it from
these men themselves. Such is our case, gentlemen of the jury

“And besides, men of Athens, do not forget that, though you are
sitting in judgment only upon one cause, you are making law for the
whole port of Athens; and a large number of commercial people are
standing by, to see how you decide this question. For if you hold
that contracts and mutual engagements ought to be enforced, and
treat with rigour those who violate them, the lenders of money will
be more ready to part with what they have, and by that means the
trade of your port will be increased. But if ship-owners, after
entering into written contracts to sail to Athens, shall be at liberty
to carry the ship to other ports under the plea that she has been
disabled, and under any other such pretence as these which Diony-
sodorus sets up, and to apportion the interest according to the
length of the voyage which they say they have performed, instead
of paying it according to the terms of their agreement, there will be
nothing to prevent all contracts of loan being dissolved. For who
will like to part with his money, when he sees that written agree-
ments are of no force, while effect is given to pleas like the present,
and the excuses of wrong-doers prevail over right and justice?
Never allow such a thing, gentlemen of the jury ! It is not expedient
either for the mass of the people or for the mercantile class, who are
a most useful body of men both to the public at large and to those
who have dealings with them, and therefore you ought to be careful
of their interests/’

\3SA 1

6. .hivoeates

Might not this speech, in style and construction, have
served equally well lor a jury ol today trying the same
issiie?

Perhaps the case most celebrated for the eloquence of
the orators, in Athenian justice, was the prosecution of
Ctesiphon by Aeschines. Aeschines, 18 who spoke as
prosecutor, and rivalled Demosthenes in fame, charged
('tesiphon with illegally proposing that the Assembly
should award to Demosthenes a gold crown in recognition
of Demosthenes’ patriotic services against the Mace-
donians. The trial was had probably before a jury of one
thousand. Demosthenes, though nominally the defender
of Ctesiphon, was virtually defending himself and his
whole political career. Immense crowds from all Attica
thronged into the city to hear the famous rivals. And then
was delivered that oration which is handed down, by
universal opinion, as the greatest speech of the greatest
orator in the ancient world, — Demosthenes’ Oration on
the Crown. History records its overwhelming success,
and the verdict that vindicated him drove his prosecutor
into exile,

7. The legislation of the Greek city-states, though
copious, has come down to us only in scanty scattered
fragments, — sometimes in the original stone inscriptions,
sometimes in quotations of laws in the orators’ speeches.

[ 885 )

VI. 13 — Aeschines

He was the advocate for the prosecution, in the trial which
made Demosthenes virtually the defendant

[ 886 ]

7 . /

The earliest of the
('•reek communities,
known to us in definite
records, was the large
island of Crete, lying in
the Mediterranean, on
the way from Egypt;
and here tradition places
the home of Minos, the
first Greek law-giver.

Minos’ date is perhaps
1600 years before Christ;
and the throne on which
he sat in the royal palace
at Knossos, 3500 years
ago, can now be seen by the traveler replaced in its original
spot.n Minos, in Greek mythology, received his laws from
Zeus, and later plays the part of one of the three judges of
souls in Hades.

None of the law records of the Minos period have yet
been found. But the oldest statute-law now extant be-
longs also in Crete, about 1000 years later,— the law of
the city of Gortyna, dating from perhaps B. C. 400.

This inscription, the largest extant fragment of any
Greek law, came to light less than fifty years ago ; for the

[837 1

Ill

VI. 15 — City-Law of Gortyna, B. C. 400

The restored original forms an oblong horizontal stone wall, 30 feet
long. As here divided, to fit the book-page, the lowest third is
the left-hand end. The topmost third, forming the right-hand
end, shows where stones are missing

\ 338 1

7. lA'ifishitiou

, WA^PS VSVSME/--
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2 3 3MOTIAO 3 3W\MQ X Q'iih

,E <A

133A2

BArrO/VTOM/W E AOPC ANOA S K
3)A c ir e <!TAW\MTSA)V\AfMA
TaSTONC ATP OAK AS TO M/ M/ AT
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AKPEAAATA^AS^AA/ECSKAPCS
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rr SMTACP SNK o C Y S ETA S OfV S
2 3 3 ) 3 A 2 T 3 3 A *3A OV A 3 A2A© 3
AON A

VI. 16 — Gortyna Law (enlarged sample)

The Cretan writing, in those days, read from left to right (in the
top line), then turned and read from right to left, and so on

stones on which it was chiseled had become buried for two
thousand years or more; and its discovery made a sensa-
tion in the learned world. It was about thirty feet long in
its original form; 16 the broken pieces are now scattered in

[ 339 ]

VL Greek Legal System

several museums; but a plaster facsimile of the whole is
preserved in the Academy of the Lynx at Rome. The
inscription illustrates, on closer view, that at that period
of literature the Cretan writing ran in alternate lines from
left to right and then from right to left; turning about, as
the ox turned in ploughing furrows; hence the term
“boustrophedon” for this style of writing . 16

The first paragraphs of this law prescribe the mode of
trying an issue of personal freedom, or slavery ; the later
ones deal chiefly with the inheritance of property. A few
passages will illustrate the fairly primitive style (and it
will be noted that the Twelve Tables of Rome, attributed
to about the same date, and reputed to have been drafted
on a Greek model, represent a style only a little more
primitive ). 1

[City Laws of Gortyna .] [1] “Whoever claims for his own an-
other person, whether free or slave, shall not distrain him before
suit. If he does, he shall be adjudged to pay for such distraint 10
staters to the freeman or 5 staters to the slave, and to release him
within 3 days. If he does not release him, he shall be adjudged to
pay, for each day of delay, 1 stater to the free man or 1 drachma to
the slave. The time shall be determined by the judge’s oath. If
he denies the distraint, the judge’s oath shall determine, if there is
no witness. ...

[25] “To the father belongs the power over the children and the
property, and he may make partition of the property; and the
mother likewise as to her own property; but while they live partition
is not demandable. But if one child is adjudged liable to pay to

7 . Legislation

some one, the prescribed share may be allotted to the child so ad-
judged.

|2(>] “If a man dies, his town houses and all therein, except
such houses as occupied by serfs attached to the rural lands, and the
sheep and large cattle, except tho.se in a serf’s possession, shall go to
the sons. All the rest of the property shall be divided, as fairly as
may be, two parts to each son however many there are, and one
part to each daughter, however many there are.

[27] “The mother’s goods also shall be divided, if she dies, in
the same manner as the father’s

[31] “If a man or a woman dies, and if there exist children, or
children’s children, or the latter’s children, this group shall have the*
property. And if none of these exist, then the deceased brothers and
their children and the latter’s children, this group shall have the
property. And if none of these exist, the sisters of the deceased and
their children and the latter’s children, this group shall have the
property. And if none of these exist, then the other relatives who-
ever they are, this group shall have the property. And if no other
relatives exist, all those who are the household’s serfs, these shall
have the property ....

[36] “While the father lives, the father’s property shall not be
sold nor mortgaged by the son ; but what the son has himself earned
or received by partition he may dispose of as he pleases. Nor shall
the father dispose of property earned by the children or partitioned
to them, nor the husband dispose of nor bind the wife’s property,
nor the son the mother’s.

[37] “If any one buys or takes in mortgage or receives an
obligation on property other than as prescribed herein, the property
shall remain in the mother or wife, and he who has [fraudulently]
sold, mortgaged, or promised it shall pay double to the vendee,
mortgagee, or promisee, and the full amount of any other loss
caused; but transactions prior to this law shall not be adjudged by

[ 340 ]

\8U 1

V I. Greek Legal System

it. If the opponent [in a proceeding under this law] disputes that the
property belongs to the mother or wife, the claim shall be adjudi-
cated before the court having jurisdiction.

[38] “If a mother dies leaving children, to the father belongs
the power over the mother’s property, but he shall not dispose of or
mortgage it, unless the children consent, being of. age. And if
any one buys or takes a mortgage contrary hereto, the property shall
remain in the children, and to the buyer or mortgagee he who has
[fraudulently] disposed or mortgaged shall pay double the sum, and
also the full amount of any loss caused.

[39] “If the father marries another woman [after the first wife’s
death], the children shall have the power over their mother’s
property”.

The name of Solon, the legislator (who lived about
B. C. 600), is forever associated with the laws of Athens.
Solon typifies the thorough democratization of Athenian
law and justice. It was that wise old statesman who,
when asked by a friend whether the laws he had framed
for the people of Athens were the best possible, answered,
“Yes, — -Yes, indeed, the very best — that they could
endure!” In Solon’s time the laws passed by the As-
sembly were publicly preserved in wooden or bronze or
stone tablets on the Acropolis, — the crowning glory of
Athens. 17 Particular laws of Solon, and numerous other
separate laws or statutes of Athens, and the other city-
states, are frequently quoted in the orations still extant;
but only a few minor ones have survived the ravages of
time in their original records.

[ 8 &\

VI. 17 — The Acropolis

7. Legislation

The following law of Solon, quoted in one of Demos-
thenes’ speeches, illustrates the style of enactment in
Solon’s period : j

“If a man has recovered the article which he has lost, the thief
shall be condemned to pay the double value; if not, to pay tenfold,
besides the cumulative penalty; and he shall be kept in the stocks
five days and as many nights, if the jury-tribunal shall have imposed
such sentence. And any person who likes may propose the ad-
ditional penalty, when the question of a penal sentence is before the
court. And if any one is taken off in custody after conviction for
ill-treatment of parents, or for desertion, or for entering where he
has no business to enter after notice of exclusion from legal privi-
leges, the Eleven shall put him in prison and shall bring him before
the jury- tribunal; and any one that pleases, to whom such right
belongs, may prosecute; and if the party accused be convicted, the
jury- tribunal shall determine what penalty, corporal or pecuniary,
he shall suffer; and if he be sentenced to a pecuniary penalty, he
shall be imprisoned until he has paid.”

But by the time of Demosthenes, two and a half
centuries later, legislative draftsmanship had developed a
high degree of technical phraseology* The following law,
the subject of Demosthenes’ attack in the above-men-
tioned speech, had recently been passed on motion of
Timocrates the defendant : 3

[A Greek Enactment , B. C. 300.] “In the first presidency, to wit,
that of the Pandionian tribe, on the twelfth day thereof, Timoc-
rates moved : If any of the persons who are indebted to the State

has been or shall hereafter be condemned, pursuant to a law or to a
decree, to suffer the penalty of imprisonment, it shall be lawful for
him, or for another person on his behalf, to put in such bail for the

[ 343 ]

VI. Greek Legal System

debt as the people shall approve, to be security for payment of the
sum which he owed, and the committee of council are hereby re-
quired to take the votes of the assembly, when any one wishes to
put in bail; and the person who has given bail, if he pays to the
State the money for which he gave the bail, shall be released from
imprisonment; but if neither he nor his bail shall have. paid the
money in the ninth presidency, the party released on bail shall be
imprisoned, and the property of the bail shall be confiscated. Pro-
vided that, in the case of farmers of the taxes and their sureties, the
State shall be at liberty to recover her dues according to the es-
tablished laws. And if any one is indebted in the ninth presidency,
he shall pay his debt in the ninth or, tenth presidency of the follow-
ing year/*

The speech prepared by Demosthenes on this occasion
serves to illustrate the unique machinery of legislation
which had developed in Athens under government by
mass-rule without a senate or a judiciary. Its peculiarity
was this: Instead of the system of “checks and balances'’
supplied in modern times by separation of departments,
second chambers, and constitutions controlling statutes,
the expedient was devised of making the mover liable to
prosecution at a later assembly for proposing uncon-
stitutional legislation. It was in a prosecution of this kind
that Demosthenes delivered his great oration on the
Crown already mentioned; he was defending the author of
a resolution awarding him a gold crown for his patriotic
services . 18 The method is thus described : k

“The process of legislation in Athens involved the services of a
group of dicasts [or, citizen-jurors]. Once a year the assembly con-

[* 44 ]

7. Legislation

KA IETE0AN AEAI AY]rONOAAAOY£TE<WA

NAIANArPAVAIAETOAEVH* |]£M ATONTPAMMATEATt
ONKATAPPYT ANE I AN ENETHA1EI AIOI NEIKAIETHEAifEN
TAIPPYTANEIAIEIZAETH N]ANA rPA4>HN[IQA»TH N PO I [HE
I NT OYETE0ANOYMEPIEAI TOYEEPlITEIAIOIKHfElEITOrEfNOM
[ENONANAAAMA]

EPI APXONTOETO Y M ET]A<t>ANAOXlAHNEPITHE[P.

...... I AOEA AAE K ATH 1 P YTjANEIAEHIPPOKAHEPEPI . .

• ET P AMM AT E Y EN]EKIP04>0PIAN0ZENEIKAINE

aitpiakoeteitheppytaneiaeekikaheiaentaioeatpai

TANPPOEAPANEpE'PH<t>l£EN 1TOEKPATHTOEEAEYEINIGE

KAIE YM PPOEAPOIEAOEENTAIAHMAI] SENOOANEYOANT

OY ElPENYPEPANAPArrEAAlOYEINOIPPYTANEIETHEP

• I AOZYPEPTANOYZIANANEO]YONTAPPOTANEKKAHEIA

NAETAIAPOAAANITAIPPOETATHPIAIKA1T1EI APTEMIAITEIBOYAAIfA
IKAITOlEAAAOIEOEOIErATPIONHNIAr AOEITYXEIAEAOXOAI
TAIAHMAITAMENAr AOAAEXEEOAITArE rONOlTAENTOIEI EPOI EOlEfEOY
ONEP ITYXH I KAIEATH PIAITHZBOYAHEKAITlOYAHMrOYTOYAOllNAflAN
EP El AHA EO ITP YT ANEIETAETE0Y£I]AEEO[YEAN

VI. 18 — Athenian Enactment, about B. C. 300

sidered the advisability of accepting proposals for changes in the
laws. If the vote was favorable, all suggestions for changes, together
with the laws to be abrogated or amended, were posted in the
market-place and filed with the clerk of the assembly, who read them
at the two succeeding meetings. The assembly then made pro-
vision for the selection by lot of a group of dicasts called ‘no-
mothetes’, or legislative commissioners. The number varied.
Commissions of five hundred and of one thousand are mentioned.
The proceedings were thfe same as in a regular court. It was the
duty of the commissioners to listen to the proposer of the new law or
amendment, to the five public advocates appointed to defend the
law impugned, and to any other citizens who cared to speak on
either side. The issue was decided by a majority vote. During one
year after the passage of a new law the mover was liable to indict-
ment and punishment for unconstitutional legislation. The un-
constitutionality might consist either in the character of the legisla-

[ 345 ]

FI. Greek Legal System

tion or in the failure to observe the procedure provided by law.
The penalty was assessed by the jury and might be severe. After
the expiration of a year the mover was free from personal liability,
but the law could be attacked at any time. The process of legisla-
tion was a fruitful source of litigation. The indictment for uncon-
stitutional legislation was the favorite political weapon of the fourth
century. Litigation was the handmaid of politics. Aristophon, a
prominent politician contemporary with Demosthenes, is said to
have boasted that he was indicted seventy times for unconstitu-
tional measures.”

8. The transactional instruments of Greek practice,
which have come down to us in full textual terms, are
scanty, — a few score, in comparison with the thousands
from Egypt and Mesopotamia; but they reveal an elab-
orate development. The variety of types represented is
also smaller; but the carefulness of concrete detail, the
prevision of contingencies, and the practicalness of the
measures provided, show that Greek commercial experi-
ence and Greek intellectual keenness had already devel-
oped a standardized conveyancing which marked a de-
cided advance over any of the earlier systems.

Let us glance at four typical instruments, — a land-
transfer record, a land-lease, a loan, and a contract of
drainage.

(a) Many or most of the Greek cities had established
record-offices where the transfers of land must be entered
in abstract. The following entries are from a record

[ 346 ]

<V. Conveyancing

lound at Tenos, dating about II. ('. 200, and containing
some (illy entries; the standardized form is noticeable: 1

l Land-Transfer Record .] . .“Antichares, son of Euporion of
Thrycse, has bought of Pasiphon, son of Peirios of Donakea, the
house and lands located at Eleonte, with the appurtenances of the

said lands, and the water, to which the abutters are

bounded by the road leading from the suburb to the watch-tower
and below, the whole being the same property bought by Pasiphon
from Simos son of Anaxicles; consenting are N. daughter of An-
tipater of Thryese, and.N. daughter of the said N. of the Phykean
tribe, and their guardians Antichares son of Euporion of Thryese,
and Celophanes son of Cleotheos of the Eleithyean tribe, for five
thousand silver drachmas”. . . .

“Artymachos, son of Aristarchos, a Heraclidean, has bought of
Telesicles son of Eucles a Heraclidean the house and lands located
at being the share of property inherited by Telesi-

cles from his father and the further property bought by him from
his brother Calliteles, to which the abutters are Pleistarchos and
Artymachos, together with all the appurtenances belonging to
Telesicles and Calliteles, the water-channels existing in the said
lands, and a fourth part of the watch-tower, the cistern in the tower
and the tiled roof belonging to Telesicles, as well as the house and
the orchard bought by Telesicles from Euthygenes, also the pottery
in the houses and the millstone and the mortar, for thirty-seven
hundred silver drachmas. Warrantors of the sale [naming nine
persons]; all bound jointly and each for the whole”.

(b) The following lease was made about B. C. 350 , as
the result of a lawsuit brought by the people of Heraclea
to eject a number of persons who had encroached on the
cultivated lands of the city’s Temples of Dionysos and of

1347 ]

V 1. Greek Legal System

Athena Polias. The city first ordered a re-survey of
the lands, and then proceeded to lease them out, on a
tenure virtually emphyteutic (or, copyhold). The whole
transaction was then inscribed on tablets of bronze . 19
The lands were classified into four lots, and the leases
of the first lot ran in these terms:”

[Lease.] “In the mayoralty of Aristion, month of Apelleos, the
city and the wardens [naming three persons] and the survey-com-
missioners [naming five persons] do lease the sacred lands of Diony-
sos, as now held by them, for life, on the terms decreed by the people
of Heraclea: [1] The lessees shall take the fruits thereof for all

time, so long as they shall give security and pay the rent annually
in the first ten days of the month Panamos; if they choose to pay in
advance [of the crop] they shall deposit in the public granary and
measure by public scales, before the grain officials annually elected,
the full amount of barley clean and merchantable equal to the
product of the land leased. [2] They shall furnish for each term of
five years, to the warden in office in that year, sureties acceptable to
the said wardens. [3] If the lessees assign to any other person the
land leased, or devise or sell the right to the produce, the assignees,
devisees, or purchasers shall furnish sureties in the same manner as
the original, lessees. [4] Any lessee who fails to furnish surety or
pay rent as provided shall pay to the wardens and the grain-officials
a double rent for the current year and also all the value lost [by a
re- lease], that is to say, the difference between the amount of rent
for the first five years of the new lease and the amount due for the
same period under the old lease, and furthermore all plantations and
buildings put upon the land shall be the property of the city.”

"The mode of cultivation shall be as follows : [5] The lessee of
the first lot [. . describing it] shall plant in vines at least 10 rods,

[848]

c

r

0 JL ( t

5< 1 , .A I < ,

: k . .rn: * f U '*■ -An r ■ r: .

* *+ r Ik 1 i V ■ - Pj ■ -V r - - ■

5 y\ . ■ > ji 11 .

F \ ^

J or* 1 ■) f i

... ' v ’ iV !>*-. : : - l, ■',‘^7

: v rv ' i A' ■' + r m

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. ' , A ^ •% . !' f I

“ 1 r* n

rTA .V

r ' y r -

■ j

\ * ■ ■' ■■■;. iA*"*.Y£.

VI. 19 — Lease at Heraclea, B. C. 350

This lease, containing some seventeen paragraphs, covered one of
four lots of land belonging to the city of Heraclea

[849]

V I. Greek Legal System

and in the part suitable for olives, shall plant at least 4 feet of olives
per rod. If the lessee claims that the land will not grow olives, the
wardens for the time being, calling in such citizens as they see fit,
shall make a sworn survey and shall report to the city assembly,
comparing the soil in question with that of adjacent lands. [6] The
lessees shall maintain all trees thereon. Trees which die of old age
or are overthrown by the wind shall belong to the lessees. [7] They
shall be ready with all trees, plantations, and perennials, in number
equal to those described in the contract, every fifth year beginning
with the year after the [current] year of the mayoralty of Aristion.
If the plantations have not been made according to contract, the
lessees shall be adjudged to pay 10 pieces of silver per foot of olives
and 2 minas per rod of vines. The wardens for the time being, after
calling upon at least 10 citizens selected from the people, shall
examine whether the lessees have planted according to contract.
They shall enter in their report the names of those planting and the
number of trees planted, also the names of those who have failed to
observe the terms of the contract, and shall proceed to collect the
penalties as well as the rent due. [8] If any person appropriates
the temple lands and pastures and animals therein, or removes any-
thing, destroys, breaks, or saws timber, or commits other waste of
that sort, the lessee shall proceed against him for the heaviest
penalties, and the fine imposed shall go to him. [9] The canals and
ditches on the said lands shall not be deepened nor drained nor
dammed, either to increase the flow therein or to divert it; the
lessees shall as often as needed dredge those that traverse their
respective lands; the roadways shall not be cultivated, nor shall they
be fenced or obstructed for passage. In case of violation of these
provisions, the wardens for the time being shall fine or cause them
to be fined until they observe the terms of the contract. [10] The
lessee shall neither destroy nor cut nor saw any tree, neither himself
nor any one on his behalf; he shall make neither mound nor hole
other than those now on his plot; he shall neither open nor allow to

[ 350 ]

<V. Conveyancing

be opened any quarry in (he lemple land; otherwise he shall be
deemed guilly of profaning sacred land. 1 1 I] Me shall build on the
land buildings as follows, a cal lle-slable, a shed, and a barn; the
stable to be 22 feet long by IS feel broad, the barn not less than 18
feel long by 15 feet broad, the shed 15 feet each way, the same to be
finished, enclosed, and roofed within the period above provided for
the plantations; failing which they shall be adjudged to pay a
penalty of 0 minas for the stable, 4 minas for the barn, and 3 minas
for the shed. [12] The brushwood and undergrowth they shall
neither sell nor cut nor burn; nor allow another to do so; failing
which they shall be liable according to the law and the contract;
provided that they may make use of timber for construction and for
vine- poles, and may cut dead wood as needed for household uses; no
lessee to take brushwood or undergrowth other than from his own
plot. [13] The vines and fruit trees dying of old age are to be re-
placed by the lessees so that their number be always equal to con-
tract. [14] The lessees shall not mortgage nor hypothecate the said
lands, whether buildings or ground, otherwise they shall be liable
according to law. [15] If a lessee die without children or will, the
city shall have the entire enjoyment of the premises. [16] If the
lessees are evicted by reason of war, so as to lose enjoyment of the
lands, the lease shall be cancelled, on terms to be decided by the
people of Heraclea, and neither the lessees nor their sureties shall be
liable under this contract. [17] The sureties given from time to
time shall be responsible for rents, penalties, loss of value on re-
lease, and for judgments; they shall be liable both in person and in
property as proved by witnesses; they shall not be entitled to dis-
pute any liability of the lessee, nor to evade indirectly any claim of
the city or its representatives.”

Who can doubt that this instrument represents a long
accumulation of experience in technical draftsmanship
and legal maneuvers?

[351 ]

(V. Conveyancing

V /. Greek Legal System

(< c ) The high degree of development of Greek banking
is well known. In its legal aspect, the forms of obligation
kept equal pace. In the following contract (one of five),
dating about B. C. 200, a banker of Naxos lends money to
the city of Arkesine, the city assembly having authorized
commissioners to negotiate the loan : n

[Loan.] “May Good Fortune be upon us! [1] In the month
Hecatombeon, at Naxos, the mayors being . . . and Sostratos,
and in the month of Miltophorion, the mayor being Ctesiphon,
Praxicles son of Polymnestos has loaned to the city of Arkesine three
talents of Athenian silver, with no risk whatever for Praxicles, at
interest of five obols per mina per month, Portomachos and . . ,
having come as loan-commissioners pursuant to a resolution of the
assembly passed on motion of Stesagoras. [2] Praxicles has been
given a lien on all the common property of the city and upon the
individual properties of the citizens of Arkesine and of its inhabi-
tants alike on land and on sea. [3] Interest is to be paid annually
by the treasurers charged with collecting the revenues of Arkesine ;
in default of payment, the treasurers who default shall be liable to
levy and execution by Praxicles, who shall be entitled to realize
from their individual property one and a half times the amount due,
by the usual modes of execution, as if judgment had been rendered
therefor, pursuant to the treaty between the Naxians and the
Arkesinians; and such sum shall not be deducted from the amount
of the loan, but the city shall notwithstanding pay the interest, and
if not, the interest unpaid shall be added to the capital sum and bear
like interest payable annually. [4] The principal sum shall be
payable within six months after demand by Praxicles or by his
agent authorized thereto. [5] All payments, both of principal and

[ 352 ]

interest, shall be made at Naxos, to Praxicles or a person authorized
by him, in coin of Athens or Alexandria current in that city, of full
weight and good alloy, net and free of charge, as may be demanded
by Praxicles. l(>] In case the capital sum is not paid as provided
herein, the Arkesinians herewith agree and contract that they owe
to Praxicles six talents; Praxicles shall be entitled to recover this
amount by the usual methods of levy upon all the common property
of the Arkesinians and upon the individual property of the Ar-
kesinians as well as of the inhabitants thereof, both from each and
every one the whole sum, as well as from all, in the same manner as
if judgment had been given against them in the court of arbitration
as provided in the treaty between the Naxians and the Arkesinians,
and free from any liability for taking such measures; and nothing so
taken or seized by Praxicles shall be credited to the Arkesinians as
payment on the sum due and unpaid. The Arkesinians shall impose
no penalty, nor make any hindrance, [neither to himself] nor to any
other persons so taking property by order of Praxicles. If any
citizen of Arkesine or inhabitant thereof lays hands on those acting
herein for Praxicles, or hinders his levy, on any pretext whatever, he
shall pay to Praxicles one talent of silver, and this sum shall be
recoverable from him as if judgment had been rendered for Praxicles
in the court of arbitration as provided in the treaty, and this amount
shall not be credited to the city as payment on the loan. If any loss
or damage is incurred by Praxicles by reason of this levy on proper-
ty, it shall be charged to the city of Arkesine, and the whole amount
of it shall be paid with the rest of the loan. [7] It is agreed by the
Arkesinians that nothing shall overthrow this contract, and that
neither law nor vote nor decree nor mayor nor other officer shall rule
otherwise than as provided in this contract, nor shall anything
whatever on any ground or pretext avail against it, but this con-
tract shall control wherever invoked, whether by the lender or by
those acting for him. [8] The Arkesinians agree that this contract

[ 353 ]

V I. Greek Legal System

shall be inscribed and published at Arkesine [in the temple of

] on a marble pillar within sixty days after receiving the

report of the loan-commissioners; and if not, to pay a forfeit of
.... as provided in the contract now in the hands of Eurycles.

“[Signed] Praxicles

Witnesses: Eurycles [and six other names].’’

It would seem, from the closing provisions of this
instrument, providing for confession of judgment by the
debtor, and for validating the contract against any im-
pugnment by statute or court, that the draftsmanship of
Greek creditors had already discovered most of the safe-
guarding devices which modern ingenuity employs in our
own transactions.

(d) One of the most technical fields of legal drafts-
manship is that of contracts to improve real estate, es-
pecially contracts for public works. In the following in-
strument,* 0 dating about B. C. 300 (discovered in 1860,
and now at Athens), the city of Eretria contracted for the
draining of a marsh; the undertaker was here an alien,
probably a professional in his line; the instrument was
inscribed on marble slabs: 0

[Contract to Drain a Marsh.] “Following are the terms by which
Chaerephanes engages with the Eretrians to divert and drain the
marsh at Ptechae:

“[1] The contractor shall bear all expense of the work of
drainage, but he shall be exempt from import and export dues on
materials necessary for the work, and this shall cover imports of all

\S54 1

VI. 20 — Contract to Drain a Marsh, B. C. 300

This contract, inscribed on marble slabs, was discovered in
1860, and is now at Athens

[355]

VI. Greek Legal System

stone and wood needed for the work, as . . . . . customary

for public undertakings. [2] When he shall have drained the
marsh, he shall enjoy the use of the land of the marsh, paying thirty
talents rent, for ten years, payment to be made to the city in in-
stalments each year. [3] Chaerephanes shall drain the marsh
within four years at most, the time of this contract to begin from
the year after that in which Hippokydes and his colleagues are in
office, and the period of four years to begin from that time. [4]
Chaerephanes shall be exempt from all dues on sales of produce
from such land, if sold in Eretria and not exported. [5] The citi-
zens bind and engage themselves to Chaerephanes, by oath taken in
the temple of Apollo Daphnephoros, to let him enjoy the use of these
lands for thirty talents during ten years, from when he shall have
drained the marsh, this contract to be inscribed on a stone tablet
containing the contract and the oaths and all other matters, and to
be placed in the temple of Apollo Daphnephoros. If during the
work a war shall hinder Chaerephanes from completing the drainage
as provided herein, then when it shall be feasible [to resume] on
return of peace, he shall be allowed an additional time equal to the
duration of the war. If later a war intervenes and it shall not be
feasible to enjoy the use of the marsh-lands, an ad-

ditional time, equal to that of the war, shall be allowed when use can
be resumed. [6] Chaerephanes shall be entitled to dig under-
ground conduits under lands that are individual property, but he
shall not dig until paying therefor. At the line of the marsh, if
adjacent land is needed, he shall pay at the rate of one drachma per
foot, at the time of doing the work. [If he makes drain-ditches], he
shall carry them around cultivated land and shall preferably carry
them through land not cultivable. For the discharge of ditches, he
shall construct a basin not to exceed two square stadia in area.
During the period of occupation of the leased land, he shall care for
the upkeep of the underground channels and all others, and shall
maintain all in good condition. He shall erect a fence around the
basin, and at the point of exit of water from the basin to the under-

\S56]

8. Conveyancing

ground channel, he shall construct a so that when

the water accumulates the farmers who need it may close the en-
trance to the channel and make use of the water without .....

[7] If Chaerephanes dies before draining the marsh,

.... this contract shall be binding with his heirs. [8] If any
person, whether private citizen or official, by writing or by vote,
proposes to annul this contract, or compels Chaerephanes and his
associates to break this contract, on any ground or pretext what-
ever, he shall be disfranchised, his property forfeited by attainder to
Artemis, and he himself and his family shall suffer outlawry. [9]
Chaerephanes shall give sureties who will engage by oath that when
he shall have drained the marsh the said marsh shall be dry, and that
he shall pay the thirty talents for the enjoyment of the land. [10]
[Execution by the City] The councillors having recommended [the
foregoing terms], the council and the people voted that the terms of
the contract with Chaerephanes should be inscribed, both the fore-
going terms and the following [additional ones] :

"During the progress of the work for the city, the contractor
shall be exempt from interference by process both on land and on
sea, in war and in peace, both Chaerephanes himself and all those
engaged in the work with him. This exemption shall apply to
Chaerephanes and to all engaged with him in the work from time to
time; provided that if any third person has a right of attachment
against the city, this shall not be exercised against those working
with Chaerephanes before they have settled their accounts with the
city.

"Sureties: [follow five names]

"[11] The councillors having recommended, the council and
the people approved, that all the citizens shall bind themselves to
Chaerephanes by oath at the temple of Apollo Daphnephoros, and
whoever shall not make oath shall be disfranchised. . . . [Then
follow some details of the oath-procedure]. The oath shall be as
follows: T swear by Apollo and Latona and Artemis to let Chaere-

[ 357 ]

VI. Greek Legal System

phanes enjoy the use of the land of the marsh on the terms of the
contract made by the city concerning said marsh; if any person
breaks the contract with Chaerephanes, I shall oppose him to the
extent of my power, pursuant to our common oath. If I observe
my oath, may many good things come to me, and if I break it, may
I be ruined, I and all my property’. [Then follow further provisions
to carry out par. 8 above.] [12] “Counterparts of this contract
shall be ... . [deposited] at Megara and at Andros. [The
above] vote of the people ”

It is known that the s Eretrians, in their period of
prosperity, once celebrated the festival of Artemis with a
procession of three thousand soldiers, six hundred horse-
men, and sixty chariots. We can accept this contract
(evidently the product of standardized experience) as
representative of the development of the technique of
conveyancing in a hundred busy small city-states of
Greece, by the period B. C. 300. A stage far beyond that
of Egypt and Mesopotamia has here been reached.

9. But with all this wealth of advanced types of trans-
actional forms, there is still something lacking. Looking
back over the Greek records, and comparing them with
those of the peoples that preceded and followed, the
truth seems to be, that though the Greeks had a system of
justice, it can hardly be said that they had a system of
law, — in the Roman and the modern sense of the term. p
They constructed no codes. They reported no reasoned
decisions. They wrote no doctrinal treatises. They de-

[ 358 ]

( ). Greek I a' util Science.

vclnpcd architects, philosophers, sculptors, suul painters;
hut no professional judges or jurists. Their one juridical
contribution, the popular jury-court, took a form most
susceptible to caprice, and essentially incompatible with
any science of law. They lavished their wealth on
temples (witness the temples at Olympia 81 ); but not, as
the Romans did, on court-houses.

The Greek mind exhibited a genius for the fine arts, —
a passion for politics, — an infinite faculty for philosophy,
— and a leadership in literature. But, relatively, these
talents found no aptitude for jurisprudence. Their
temples, their statues, their dramas, are models for all
time. Their experience in politics still has lessons for us
today. Their speculations in philosophy leave little for
modern thought to invent. The Greek language was
carried by Alexander’s conquests eastward and south-
ward, over almost the then known world ;« and in Egypt
it came to be employed as the vehicle of philosophy, of
religion, and of law, under Roman rule, for seven cen-
turies after Alexander’s empire had fallen; so much so
that, by the recent copious discoveries of Egyptian papyri
applying Roman law in the Greek language, the modern
study of Roman law has been almost revolutionized. In
short, Greek legal science, had such a thing existed, was
in a most favorable position to survive and to serve as a
model for ensuing nations.

[ 359 ]

[S 60 ]

( ). Greek / a* gill Science

Bill Alexander's vast t* 1 1 1 1 >i re left surviving it no per-
manenl monument of Greek law. Even the ruins of the
I'arthenon are still zealously studied and measured by
modern architects.** Every scene of Greek tragedy, and
every school of Greek philosophy, must be familiar to
modern masters in those fields. And the resurrected texts
of Roman law are still perused by thousands of students
in every country as the ultimate source of a large part of
the world’s law today. But Greek law now interests only
the historian and the philologist.

[361 ]

V I. Greek Legal System

Sources of Illustrations

1. Map of Greece. From the map in Helen Zimmer n, “The Greek Common-
wealth”, appendix (Oxford, Clarendon Press, 1915).

2. Temple of Themis. From the illustration in “The Unedited Antiquities of
Athens”, chap. VII, plate 2, ed. The Society of Dilettanti (Longman,
London, 1817).

3. Socrates in Prison. From a photograph by the Bond Co., Chicago, of an
unidentified painting.

4. Aristotle's Government of Athens. From the facsimile of the original in the
British Museum, edited by F. G. Kenyon (London, British Museum, 1891).

5. Juryman's Ballot. From the illustration in Morgan's “Orations of
Lysias”, p. XLIII.

6. Market-place at Athens. From the illustration iw J. A. Harrison , “The
Story of Greece”, frontispiece (New York, Putnam, 1890).

7. Trial of Phidias. From the facsimile in Jules Nicole, “Le proces de
Phidias”, appendix (Geneva, Kundig, 1910).

8. Statue of Athena. From a photograph by Homer H. Kingsley, Evanston,
Illinois.

9. Pericles Addressing the Assembly on the Pnyx. From a reproduction, by
the McIntosh Stereopticon Co., of an unidentified painting.

10. Trial of Orestes. From the drawing in Walter Crane, “Echoes of Hellas”
(London, Marcus Ward, 1887).

11. Trial of Phryne. From a photograph by Giraudon, Paris, of the painting
by J. L. David, in the Musee Dobree, at Nantes.

12. Demosthenes. From a photograph of the original in the Vatican Museum.

13. Aeschines. From a photograph of the original in the Vatican Museum.

14. Throne of Minos. From a photograph by Charlotte W. Lyttle, published in
“The Mentor”, April, 1924, p. 47.

15, 16. Gortyna Inscription. From a photograph of the original cast taken for the
author by the Director of the Academy of the Lynx, at Rome, 1923.

17. Acropolis. From the engraving in “Bilder- Atlas”, vol. V, plate 6 (Leip-
zig, Brockhaus, 2d ed., 1875).

18. The view shown is the text, not of the proposal for a crown to Demosthenes
but of another Athenian enactment, about B. C. 300, awarding a crown;
from a drawing in “Corpus Inscriptionum Graecarum”, ed. Aug. Boeckh
(Royal Prussian Academy, 1828), vol. I, pars II, No. 113, p. 155.

Sources

19. Lease. From a photograph, furnished by the Director of the National
Museum at Naples, of the original inscription, known as the Tabulae
I leraeleenscs.

20. Contract to Drain a Marsh. From a photograph, furnished by the Li-
brarian of the University of Illinois, of a facsimile published in the “Arch-
aeologike Ephemeris” (Athens), 1869, II series, vol. 13, No. 404, page 317,
plate 48.

21. Temple at Olympia. From W. Luebke and C. von Luetzow, “Denkmaler
der Kunst”, vol. “Architektur”, plate XI (Stuttgart, Neff, 4th ed., 1884).

22. Map of Alexander's Conquests. From the map in F. W. Putzger's “His-
torischer Schul- Atlas” (Leipzig, 16th ed., 1890).

23. The Parthenon at Sunset. From a photograph made and colored by
Mr. and Mrs. Homer H. Kingsley, Evanston, Illinois.

Sources of Documents quoted in Text

aa. (Prologue) : Moore, “Judaism,” vol. I, page 235 (cited ante, chap. III).

a. Homer’s Description of the Shield; The Iliad, book XVIII.

b. Authorities have differed as to the majority number of votes, owing to
variant readings of the text in Plato’s “Apology”, ch. XXV; one reading
would make it six.

c. Aristotle’s Government of Athens. From the translation by Sir Frederic
G . Kenyon , “Atheniensium Respublica”, cc. 63-69 (Oxford, Clarendon
Press, 1920).

cc. Lucian’s Trial. From his “Double Indictment”, transl. A. M. Harmon, in
“Lucian”, vol. Ill, p. 85 (Loeb Classical Library, 1921).

d. Greek Jury System. From Charles Rann Kennedy, “The Orations of
Demosthenes”, vol. IV, app. VI, p. 361 (London, George Bell & Sons,
1909).

e. Athenian Court. From Mitchell's edition of Aristophanes’ Wasps, quoted
in Wm. Forsyth , “Hortensius”, p. 26 (3d ed., 1879).

/. Athenian Juries. From W. S. Ferguson, “The Fall of the Athenian
Empire: Law and Politics in Athens” (Cambridge Ancient History, 1927,
vol. V, chap. XII, p. 349).

g. Trial at Cnidos. From the French translation in R. Dareste, B. Hous-
soulier, and Th. Reinach, “Recueil des Inscriptions Juridiques Grecques”,
1st series, p. 159 (Paris, Leroux, 1891).

[ 868 ]

[ 868 ]

F L Greek Legal System

h. Demosthenes’ Speech. From the translation in Kennedy (cited supra),
vol. V, p. 187.

i . Laws of Gortyna. From the Greek text and French translation in Dares te,
H. & R. (cited supra), p. 352.

j. Solon’s and Timocrates’ Laws. From the translation in Kennedy (cited
supra).

k . Method of Legislation. From R. J . Bonner, “Lawyers and Litigants in
Ancient Athens” (1927), p. 98. The text of the law establishing this pro-
cedure is quoted in Demosthenes’ speech above citecL

/. Land-transfer Record. From the Greek text and French translation in
Dareste , H. & R. (cited supra), p. 67.

m. Lease. From the Greek text and French translation in Dareste, H. & R.
(cited supra), p. 209.

w. Loan. From the Greek text and French translation in Dareste, H. R.
(cited supra), p. 313.

o . Contract to Drain a Marsh. From the Greek text and French translation
in Dareste, H. & R. (cited supra), p. 145.

p . “Even the Greeks . . .' produced no true monument of jurisprudence.

Law remained in Greece an appendage to rhetoric and ethics” (J. De-
clareuil, “Rome the Lawgiver”, 1926, p. 9). “The key to the {Athen-
ian) popular control' of the judiciary was the principle that each panel,
being a, plenipotentiary committee of the sovereign people, was supreme
and independent in its sphere; its authority could not be shared with a
chairman or j.udge or curtailed by any other court. It follows that no
body of case-law in equity or authoritative interpretations of statute law or
binding precedents could be developed as in the English and American
Systems.” (R. J. Bonner, “Lawyers and Litigants in Ancient Athens”,
1927, p. 74).

The following judgment has been expressed upon the Greek legal literature
of a thousand years later, under the successors of Justinian; “The scien-
tific activity of the Greeks devoted itself with the happiest results to the
abstractions of theology. But when they took the law for their subject,
this direction to their ideas, bent always on speculations, was calamitous
for the development of the law. Great as was the superiority of the
Greeks in the study and knowledge of the abstract idea of justice, equally
inferior were they in the practical application of principles to the concrete
circumstances of social life. Admirable as philosophers, they were the

Sources

reverse ;ih pracl icul jurist h. I Indrr I hr direr! influence of J ustiniun or of the
school founded by him, jurisprudence could shine with a passing brilliance
in file A. I). 5 (K)’h. But once left lo themselves, the subjects of the Greek
empire neglected those studies for which they had neither a calling nor a
capacity.” (J . A. B. Mortreuil, “Histoire du droit byzantin”, Paris, 1843,
vol. I, p. LL8).

General References

Robert J. Bonner , “Lawyers and Litigants in Ancient Athens” (University of
Chicago Press, 1927; the most realistic account of Athenian justice, cover-
ing the whole ground); “The Administration of Justice in the Age of
Homer” (Classical Philology, VI, 12); “The Administration of Justice in
the Age of Hesiod” (id. VII, 17); “Athenian Arbitrators” (id. XI, 191);
“The Legal Setting of Isocrates’ Antidosis” (id. XV, 193); “Evidence in
the Areopagus” (id. VII, 450); “Evidence in Athenian Courts” (Univer-
sity of Chicago Press, 1905).

Robert J . Bonner and Gertrude Smith , “The Administration of Justice from
Homer to Demosthenes” (University of Chicago Press, 1929).

Alfred P. Dor John, “Legal Precedent in Athenian Courts” (Philological Quar-
terly, October, 1928).

Sir Paul Vinogradoff, "The Jurisprudence of the Greek City” (vol. II of “Outlines
of Historical Jurisprudence”, Oxford University Press, 1922).

George M. Calhoun, “Oral and Written Pleading in Athenian Courts” (Trans.
Amer. Philosophical Association, vol. L, p. 178); “The Growth of Criminal
Law in Ancient Greece” (University of California Press, 1927); “The
Business Life of Ancient Athens” (University of Chicago Press, 1926);
(with Catherine Delamere) “A Working Bibliography of Greek Law”
(Harvard University Press, 1927).

K . Freeman , “Work and Life of Solon” (London, 1926).

H. J . Treston , “Poine: a Study in Ancient Greek Blood- Vengeance” (London,
1923).

Gertrude Smith, "The Administration of Justice from Hesiod to Solon” (Uni-
versity of Chicago Press, 1924); “Athenian Political Commissions” (id.
1920).

Ludovic Beauchet, “Histoire du droit prive de la r£publique ath£nienne” (Paris,
1897, 4 vols.).

[ 365 ]

]

V /. Greek Legal System i

{

R. C. Jebb , “The Attic Orators from Antiphon to Isaeos” (London, 2 vols., 1870).

C. R. Kennedy , “Orations of Demosthenes” (cited supra).

G . Gilbert, trarisl. Sandys, “Constitutional Antiquities of Sparta and Athens”

(New York, Macmillan, 1895).

A.H. J. Greenidge , “Handbook of Greek Constitutional History” (London, 1920).

R. Dareste , “Etudes d'histoire du droit”, 1st series, 2d ed. 1908; 2d series, 1902; 3d
series, 1906 (Paris, Larose).

W. Wyse , “Speeches of Isaeus” (Cambridge, 1904).

E. S. Forster , “Isaeus” (Loeb Classical Library, 1927).

C. D. Adams , “Speeches of Aeschines” (London, Heinemann, 1919).

A. E. Zimmern, “The Greek Commonwealth” (Oxford, 1911).

Egon Weiss, “Das griechische Privatrecht auf rechtsvergleichender Grundlage”

(Leipzig, vol. I, 1923).

M. deG. Verrall and J. E. Harrison , “Mythology and Monuments of Athens”

(1890).

[ 366 ]

VII

The Roman Legal System

1. Roman instinct for law and order — Territorial ex-
pansion.

(I) Period of the Republic

2. The Twelve Tables — Public inscription of laws —
City ordinance for highway regulation, B. C. 45 —
Colonial city ordinance for court-procedure.

3. Earliest civil judgment, in a boundary suit.

4. Transactional instruments — Contract to build a
gateway, B. C. 105 — Deed from Dacia — Testament
from Egypt.

5. Lay tribunals — The advocate — Tacitus on the status
of advocates — Hortensius — Cicero — Essay on argu-
mentation.

6. The court-houses — Jury trials.

(II) Period of the Early Empire

7. The praetor— Trial methods — Trial of Apollonius at
Rome — Sophists’ trial at Athens — Trial of Jesus at
Jerusalem.

8. Development of a science of law.

9. Julian, the judge — The Perpetual Edict — Records of
decisions.

10. Ulpian and Papinian, the counsellors — Opinion
rendered by a counsellor — Case-law.

11. Quintilian, the teacher — Treatise on the Education
of the Advocate.

12. Gaius, the jurist — The Institutes — Dawn of legal
science.

(Ill) Period of the Later Empire

13. Justinian at Byzantium — -Compilation of the Digest.

14. Italy occupied by the Germanic tribes — Disappear-
ance of Roman Law in the West.

VII

The Roman Legal System

HE earliest Roman settlers, beginning as simple
immigrant colonists, were soon driven by their
restless domineering energy to enlarge their
domain. Gradually, by sheer conquest, their territories
extended, during ten centuries, until the boundaries in-
cluded almost the known world. 1 But amidst their vic-
torious expansion, they carried with them their peculiar
racial contribution to civilization, namely, a passion for
law and order. By four centuries after their earliest
juristic effort (the Twelve Tables), the Roman instinct for
constitutional and legal ideas had produced a well-de-
veloped system. Their fine arts were devoted to the
embellishment of their civic life, and a political career was
the ambition of their ruling classes.* The Forum was now
a teeming brilliant centre of politics and of justice. In that
meeting-place were set up, on tablets of enduring bronze,
their principal laws. The popular assemblies, which
enacted the laws, met at one side of the Forum. The
courts were held in the same central area. It was Augus-
tus who perfected the architectural splendor of the

mm

[ 373 ]

V 1 1. Roman Legal System

Forum; and it was his famous dying boast that he found
Rome brick but he left it marble.* 1

The system of Roman law can best be sketched in
three stages, — the period of the Republic, the period of
the early Empire, and the period of the later Empire.

(I) The Period of the Republic
2. The earliest formulation of Roman law, known as
the Twelve Tables, was a crude code of twelve concise
chapters, dating about B. C. 400. The first Table, or
chapter, restored in English, will exhibit its style : a

[The Twelve Tables: Cap. I.] “1. If a man call another to law, he
shall go. If he go not, they shall witness it; then he shall be seized.

VII. 2 — The Forum

[ 374 ]

VII. 2a — The Forum

2. Legislation

"2. If he flee or evade, lay hands on him as he goes.

If illness or age hinder, an ox-team shall be given him, but
not a covered carriage, if he, defendant, does not wish.

“4. For a rich citizen the surety shall be a rich one; for a poor
one, whoever offers shall be surety.

“5. [Missing.]

“6. Where they settle the matter, let it be told.

“7. If they settle not, they shall join issue in the assembly or
in the Forum before midday, then they shall plead and prove, both
being present.

“8. After midday, the cause shall be adjudged to the party
present if the other has failed to appear.

“9. If both attend, sunset shall be the last moment of the cause.

“10. [Missing.]”

This code (it will be observed) was chiefly procedural,
— not moral, like the Hebrew Ten Commandments. “If a
man call another to law, and he go not, he shall be seized” ;
and so on. But it was venerated as a classic tradition, and
Cicero, four centuries later, wished that every schoolboy
should learn its precepts by heart.

The Tables themselves have not been preserved, but
we know their probable appearance from other early in-
scriptions, such as the Senate Resolution of B. C. 186 on
the Festivals. Long after the introduction of wax tablets
for writing, and of papyrus and parchment rolls for the
recording of laws and literature, the Roman practice pre-

[ 375 \

A 7 //. Roman Legal System

vailed of publicly setting up important laws on durable
marble or bronze, in the form of pillars or placards, for
general perusal. 8 Three thousand bronze plates, the
records of such laws, were preserved on the Capitoline

VII. 3— Senate Resolution De Bacchanalibus, B. C. 186
One of the earliest inscriptions of Roman law now extant

[ 876 ]

2 . / legislation

Mill in a spoci.'il library. Uul those have all disappeared.
Only a score or more, from oilier regions of the empire,
have been unearthed by the archaeologists.

The Lex Julia Municipalise is one of the best preserved;
it is a fragment of a city code, dating from B. C. 45. Here
are some provisions for the care of highways and regula-
tion of traffic; their technique reveals the high order of
administrative and legislative method already reached at
Rome, and a notable advance over the models of Greek
law: b

[Lex Julia Municipalis : Highway Provisions.] “Every aedile,
to whom by this law any part of the city shall be assigned, shall be
charged with repairing and maintaining the roads in all places with-
in that part in such manner as this law shall direct.

“Where a road lies or shall lie between a sacred temple or a
public building or a public space and a private tenement, it shall be
the duty of the aedile in charge of that part of the city in which such
sacred temple or public building or public space is situate, to con-
tract for the maintenance of one-half of the said road.

“If any person, required by this law to maintain a public road in
front of his tenement, shall fail to maintain such road to the satis-
faction of the aedile concerned, then it shall be the duty of the
aedile at whose discretion the road ought to be maintained to con-
tract for the maintenance of such road. Furthermore, the said
aedile, not less than ten days before he concludes the contract, shall
have it publicly notified in the Forum in front of his tribunal, the
description of the road to be contracted for, the day fixed for the
contract, and the name of the person before whose tenement the
road is situate. He shall further cause due notice to be given, to

[ 877 ]

VII. 4 — Lex Julia Municipals, B. C. 45
One tablet of a city code

[ 878 ]

2. Legislation

l lu» said person and lo Ins agents al l heir respective houses, of his
intention lo contract for the road and of the day fixed for the con-
tract. The said contract shall be concluded openly in the Forum by
means of the urban quaestor or the presiding member of the treas-
ury for the time being. The sum paid to the contractor for the said
road, and the proportion of that sum falling on the several persons
whose tenements abut on the road, according to the length and
breadth of the road in front of their several tenements, the urban
quaestor or the presiding member of the treasury for the time being
shall cause to be entered in the public accounts of money owing
to the people. Such sums he shall to the best of his honest judgment
assess among the several parties as due to the person contracting for
the maintenance of the said road. If any person so assessed shall,
within the next thirty days after he or his agent is notified of the
assessment, fail to pay the money or to satisfy the party to whom
he is made liable, then such person shall be bound to pay in ad-
dition half the same sum to the party to whom he shall be liable, and
for such purpose the magistrate to whom application shall be made
in the matter shall assign a referee or referees in such manner as a
referee or referees would be assigned in an action for money loaned.

“Where the maintenance of a road is by this law to be assigned
to a contractor, the aedile responsible for the same shall contract for
the maintenance of the said road through the urban quaestor, or the
presiding member of the treasury for the time being, in such manner
that the road shall be maintained to the satisfaction of the person
who shall have had charge of the said contract. The urban quaes-
tor, or the presiding member of the treasury for the time being, shall
see that the sum agreed upon for the contract of each road shall,
according to the terms of the agreement, be paid to the party con-
tracting for that road or be credited as due to his heir.

“Any person, before whose tenement a footpath shall be situate,
shall be required to keep such footpath fitly paved along its whole
length where it abuts on the said tenement, with stones whole and

[ 879 ]

F II. Roman Legal System

closely compacted, to the satisfaction of the aedile to whom by this
law the charge of roads in that part shall appertain.

“In the roads which are or shall be within the city of Rome, or
within the limit of continuous habitation, no person, after the first
day of January next following, shall be allowed in the daytime, after
sunrise or before the tenth hour of the day, to lead or drive any
heavy wagon; except where it shall be requisite, for the purpose of
building the sacred temples of the immortal gods or executing some
public work, to draw or convey material into the city, or where, in
pursuance of a contract for the demolition of buildings, it shall be
requisite for public purposes to carry material out of the city or
away from such places, and in cases and for objects for the which it
shall be lawful for specified persons and for specified causes to lead
or drive such wagons.

“On all days when the Vestal Virgins, the director of religious
ceremonies, and the priests, shall be required to ride in wagons in
the city by reason of the public religious ceremonies of the Roman
people, or when wagons shall be required for a triumphal procession
on the day fixed for such triumph, or for games which shall be
publicly celebrated within the city of Rome, or within one mile of
the city, or for the procession at the circus sports, for all such causes
and on all such days it shall be lawful for wagons to be led or driven
in the city in the daytime, anything in this law to the contrary
notwithstanding.

“It shall be lawful for wagons, brought into the city by night,
drawn by oxen or horses, if returning empty or conveying away
refuse, to be in the city of Rome or within one mile of the city after
sunrise in the first ten hours of the day, anything in this law to the
contrary notwithstanding.”

Another city code, for a colonial city in southern Spain
(Lex Coloniae Genetivae Juliae), dating about B. C. 45,
contained originally some one hundred and fifty sections. 5

[ 380 ]

[381 ]

VII. 5 — Lex Coloniae Genetivae Juliae
A city code, about B. C. 45, for a provincial city in Spain

2 . Legislation

V 11. Roman Legal System

The following extracts illustrate, not only the style of
legislative draftsmanship, but the determined practice of
the Romans in carrying their own system of justice into
remote conquered regions: 0

[Lex Coloniae Genetivae Juliae: Court Procedure,] “XCIV. No
person in this colony shall adjudicate or have jurisdiction, save the
two magistrates, or a deputy left in charge by a magistrate, or an
aedile, as provided for in this law. Nor shall any one by virtue of
such imperium or power cause any person to adjudicate in the
said colony, save those empowered so to do by this law.

“XCV. In the case of referees being assigned and failing to give
judgment on the day commanded, the magistrate or deputy shall,
when the cause in question comes on, order the said referees and the
party concerned in the said cause to be present, fixing a certain day
for their appearance, until the said cause shall be adjudicated, and
he shall without prejudice cause adjudication in the said cause to be
made within twenty days after referees were assigned and ordered
to adjudicate. And he shall cause public notice to be served on the
witnesses to the said cause, not exceeding twenty persons, being
colonists or resident aliens, selected at will by the person who shall
conduct the cause. And he shall take measures that the persons on
whom such notice is served, and whose names are included in the
list of witnesses, shall be present at the said trial. And he shall
without prejudice cause any person, who shall know or have heard
aught of the matters under inquiry, to declare his evidence, after
taking oath, provided that not more than twenty persons in all be
compelled to give evidence at any one trial.

“No person shall be compelled to give evidence against his will
who is related to the party concerned in the said cause, as father-in-
law, son-in-law, step-father, step-son, patron, freedman, cousin, or
any nearer connexion by blood or affinity. In the case of the magis-

Irale or deputy, who shall make such claim for the colonists, failing
to be present, if such absence shall be due to serious illness or to
business connected with bail or jurisdiction or a sacrifice or a funeral
in his household or purificatory rites ensuing thereon, or if he shall
be detained by some magistracy or power conferred by the Roman
people, then it is not the intention of this law that in the absence
from the court of the person conducting the matter, the allotment or
rejection of the referees shall proceed or the matter be adjudicated.

“In the case of a private person making the claim, and failing to
be present, on the proper day for the holding of the court, and not
having been excused when the case shall come on at the discretion of
the magistrate or deputy, on the ground that one of the aforesaid
causes of absence had arisen, viz., serious illness or business con-
nected with bail or jurisdiction or a sacrifice or a funeral in his
household or purificatory rites ensuing thereon, or that he is pre-
vented from attending by a magistracy or power conferred by the
Roman people; then no action shall lie in respect to matters for
which an inquiry is provided by this law. And in respect to such
matter, the law shall take its course, and the matter remain exactly
as though no jurors had been elected and no referees assigned for
the said matter.

“Cl I. No magistrate, holding an inquiry or conducting a trial
in accordance with this law, shall, unless such trial is by this law
bound to be concluded in one day, hold the said inquiry or conduct
the said trial before the first or after the eleventh hour of the day.
The said magistrate shall also, in respect to the several accusers,
give to the chief accuser the privilege of making his accusation for
four hours, and to every subordinate accuser for two hours. In the
case of an accuser conceding a portion of his time to another person,
he shall give to the said person, to whom such time is conceded, so
much the longer time for speaking. He shall likewise give to the
person, who shall have conceded a portion of his time to another, so
much the shorter time for speaking. For whatsoever total number

[ 882 ]

[ 888 ]

y I /. Roman Lena I System

of hours the whole number of accusers shall have the privilege of
speaking in each several proceeding, he shall give to the defendant
or the person pleading for the defendant the privilege of speaking
for twice the said number of hours in each proceeding.”

3. The earliest recorded civil judgment now extant
dates from B. C. 117. 8 It occurs on a bronze tablet,
found near Genoa, and represents a formal judgment of
arbitration between two local tribes contending over the
boundaries of their lands. The record describes the
boundaries in language quite comparable with the best
technical style of New England conveyancers in our own
day : d

[Genoa Judgment , B. C. 117.] [1] “Quintus and Marcus Minu-
tius, sons of Quintus, clan of Rufus, have taken jurisdiction of the
issues between the Genoese and the Viturians in the present cause,
and in their presence have reached a decision on the issues and have
made a finding as to the title to the land and as to its boundaries,
and have directed that the bounds be run and that land-marks be
set up, and, when this was done, ordered the parties to come to
Rome and at Rome in their presence gave judgment, pursuant to a
Senate resolution, on the Ides of December, in the consulate of
Lucius Cecilius, son of Quintus, and of Quintus Mucius, son of
Quintus, as follows:

[2] “The farm-land at Castellus of the Viturii Langenses is the
individual property of the Viturians, their heirs and assigns, not sub-
ject to tax. It is bounded as follows: At the mouth of the brook
which starts from the spring at Manicelo, and at the point where it
meets the river Ede, there is a boundary-stone; thence up along the
river till it meets the river Lemuri; thence up along the river
Lemuri to the brook Cumberanea; thence up along the bank of the

r ;i juejo

ra o

r-s

■ t 'WiJi a ? . •' *.

£ ' *H'I ' ■ i j l . I'Jll

[ 384 ]

[ 385 ]

VII. 6 — The Judgment at Genoa
This dates from B. C. 117, and is the earliest original record
extant of a civil judgment in Roman law

L II. Roman Legal System

J. Judicial Records

Cumberanca to the Ceptiema Valley; there are here two boundiiry-
stones at the Postumia road; thence on the straight line drawn
through these stones to the brook Vendupale; from the brook
Vendupale to the river Neviasca; thence down along the river
Neviasca till it meets the Procobera; thence down along the Pro-
cobera to the point where the brook Vinelasca unites with it; there is
here a boundary-stone, at the Postumia road, and another beyond
the road; from the boundary-stone beyond the road in a straight
line to the spring at Manicelo ; thence down along the brook which
starts from the spring at Manicelo, to the boundary-stone at the
river Ede the point of beginning.

[3] “As to the public land belonging to the Viturians, it is ad-
judged that the boundaries are as follows: At the point of confluence
of the Ede and the Procobera there is a boundary-stone marked I ;
thence up along the river Ede to the foot of the Lemorino hill, where
there is a boundary-stone marked II; thence up to the Lemorino
ridge, meeting a boundary-stone at the Procavo hill marked IV;
thence up along the ridge to the summit of the Lemorino hill, to
where there is a boundary-stone marked V; thence continuing by
the ridge to the Castellus known as Alin, where there is a boundary-
stone marked VI; thence traveling by the ridge on the Joventius
hill to where there is a boundary-stone marked VII; thence follow-
ing the ridge on the Apennine hill known as Boplus, to where there
is a boundary-stone marked VIII ; from the Apennine, following the
ridge to the Tuledo hill, to where there is a boundary-stone marked
IX ; thence down the slope along the river Veraglasca to the foot of
the Berigiema hill, to a boundary-stone marked X; thence by the
slope up to the hill Prenico, to a boundary-stone marked XI ; thence
by the slope descending to the river Tutelasca, to a boundary-stone
marked XII ; thence up the slope of Blustimelus to the hill Claxelus,
to a boundary-stone marked XIII; thence descending to the spring
Lebriemelus, to a boundary-stone marked XIV ; thence down along
the brook Eniseca to the river Procobera, to a boundary-stone

marked XV ; 1 lienee down along the river Procobera to the point of
confluence ol the rivers Ede and Procobera at the point of begin-
ning.

HI the foregoing land, adjudged to be public land, the

Viturii of C astellus Langascus shall have the lawful possession and
enjoyment. For this land the Viturii Langenses shall pay 400
veiturii annually in rental to the treasury of Genoa. If they shall
fail to pay this sum or to satisfy the Genoese in some other manner
acceptable to the latter, and provided the Genoese shall not be the
cause of the delay, the Langenses shall be bound to deliver each
such year to the treasury of Genoa the twentieth part of the grain
produced on that land and the sixth part of the wine.

[5] “Whoever whether Genoese or Viturian possesses land
within these boundaries shall be confirmed in the possession and
enjoyment thereof, provided his possession dates at least from the
kalends of the sixth month of the consulate of L. Cecilius Metellus
and of Quintus Mucius [B. C. 117], and those persons who have the
enjoyment of such possessions shall pay to the Langenses a ratable
tax equally with all other Langenses who shall be in the possession
and enjoyment of said land. Other than these no person shall hold
any part of the said land without the consent of a majority of the
Viturii Langenses, provided that none other than Genoese or
Viturians shall be allowed as settlers therein. And whoever fails to
abide by the decision of the majority of the Viturii Langenses shall
not be allowed to remain in possession and enjoyment of said land.

[6] “As to the portion of said land which is common land, it
shall be lawful for the Genoese and the Viturians to pasture their
herds as in the remaining land of Genoa allotted for public pasture;
no one shall impede or resort to force to prevent it, nor shall any one
impede from taking wood and materials.

[7] “The first instalment of tax due from the Viturii Langenses
shall be paid on the kalends of January of the second year, and for

[ 386 ]

[ 387 ]

L / /. Roman Legal System

those lands which shall have been enjoyed in use prior lo the kalends
of January they shall not be bound lo pay any lax.

[8] "As to meadowland which in the [currenl] year of the con-
sulate of L. Cecilius and Quintus Mucius shall be ripe for cutting
hay, located in the public lands, whether in the possession of the
Viturii Langenses, or of the Odiati or the Dectunini or the Cava-
turini or the Mentovini, no one shall be allowed to cut hay nor to
put animals to pasture therein, nor to make use of it otherwise, with-
out the consent of the Langenses, the Odiati, the Dectunini, the
Cavaturini, or the Mentovini, respectively for the tracts possessed
by each of them. If the Langenses, the Odiati, the Dectunini, the
Cavaturini or the Mentovini, shall wish to establish new meadows
in such land, or to close them, or to cut the hay, they shall be at
liberty to do this on condition that they make no greater extension
of meadowland beyond the area had and enjoyed in the summer
last past.

[9] "As to the Viturii who in the dispute with the Genoese were
prosecuted and sentenced for assault, if any one of them is still in
prison for such offence, it is held that the Genoese shall absolve and
set him at liberty. Prior to the ensuing Ides of the sixth month, if
on this ground there is any complaint of injustice, let them appear
before us on any day not assigned to other cases nor to public
functions.

"[Signed]

"[Representative for Genoa] Mocus Meticanius, son of Metico;

"[Representative for Viturii] Plaucus, son of Pelion of Pelius.”

This document from Genoa is a report of the local
representatives embodying the terms of the arbitrators'
judgment. But the records themselves of the courts of
this period, showing the forms of entry used — whether of

/. Conveyancing

Semite* or Assembly or praetor or special courts — have all
disappeared.

4. The records of legal transactions between in-
dividuals, in classic times, have virtually all perished.
But it is certain that the Romans (profiting of course from
their contact with Greek commerce and literature) used
well-developed forms of conveyancing. There is extant a
city ordinance of B. C. 105, 7 giving specifications for a
contract to build a gateway in a wall abutting on a high-
way in the town of Puteolis, and in this contract are re-
vealed all the expedients of long experience and careful
draftsmanship which we moderns are accustomed to ex-
pect in such transactions. 6 The specifications are so com-
plete that archaeologists have been able to restore the
entire structure in detailed design: 7 ^

[ Contract to Build a Gateway. \

[Date.] "In the ninetieth year since the founding of the Colony,
under the magistrate Numerius Fufidius, son of Numerius, and
Marcus Pullius and the consuls Publius Rutilius and Gnaeus
Mallius.

Of Public Works, Lex No. 2

[Subject.] "Proclamation for the construction of a wall in the
court in front of the temple of Sarapis across the street. Whoever
shall be awarded the contract shall furnish bondsmen, secured by
real estate, to the satisfaction of the magistrates.

[Specifications.] "In the court across the street, where now
stands a wall near the street, in said wall at the middle point, he

[ 388 ]

[ 389 ]

Ill . Roman Leva I System

mama

•ALTVM'PS: ■

$ rvios-mvsRK

IfXtRAPAKIFTt '

I (0 VT R i MQPAKTEMfiV'lNS' MA^KW ,

Ff R»0 OFF ICllQ'INWaMVJVWflX ARlC ViA? '
ALlFCINTASFf^F.ASSASOVOJSVt'-VFSfv/y'FlNIoiW'.

- - ^ — *<-■*•

VII. 7 — City Contract for Building a Gateway

This inscription, “Lex parieti faciendo”, contains elaborate specifications for
the contractor's undertaking, similar to those of the present day

shall open a gate-way, and shall make this 6 feet wide, and 7 feet
high. From said wall on both sides of the gate he shall make two
pilasters, and he shall make the two pilasters on the side towards

•/. (ionveynnt in a

VII. 7.1 — Reconstructed Design for the Gateway,
Deduced from the Specifications

the sea project 2 feet long by 1}4 feet thick. Over said gate he
shall place a lintel of oak 8 feet long, 13 4 feet wide, and % feet high.
Over this lintel and the pilasters he shall be required to lay two
beams of oak 8 inches thick, 1 foot high, and projecting from the
outer and the inner side of the wall 4 feet. To this he shall attach

[391 ]

I'll. Roman Lena! System

with iron nails a decora led moulding. Over said projecting beams
he shall place two small transverse beams of lir, (> inches square, and
shall fasten these with iron nails. He shall thereon lay rafters of cut
fir. .4 inches by 4 inches, and said rafters he shall space not farther
than 9 inches apart. On the rafters he shall place sheathing of fir,
made of foot timber. A facing board of fir, 9 inches by Yi inch, with
ogee moulding, he shall attach, and fasten the same with flat-
headed iron nails.

“The said gate-way he shall cover with tile roofing, using six
pieces in each row reckoning both sides of the gate, laid in squares.
All the border tiles shall be fastened to the facing board with iron
nails; and over the upper row of tiles as a ridge piece he shall place
the coping of the wall.

“The said contractor shall make two latticed doors, with winter-
oak door posts, shall set them up, fit the lock, and finish them with
pitch, after the pattern of the doors at the Temple of Honor.

“Likewise the wall which forms the outer boundary of the court
away from the street, said wall with its coping he shall make 10 feet
high. Likewise the door which now serves as an entrance in the
court, and the windows in the same wall opening upon the court, he
shall be required to wall up. Furthermore, upon the first wall
aforesaid, standing now adjacent to the street, he shall place a con-
tinuous coping.

“All these walls and their coping throughout, where not sur-
faced, he shall dress with a mortar of lime and sand, smoothed
down, and then cover with properly prepared white-wash. In the
mortar which shall be prepared for the wall, he shall use in three
parts of Puteolan earth one part of slaked lime. And in the struc-
ture of the wall, he shall neither build in any stone larger than shall
by dry measure weigh 15 pounds, nor make the corner stones higher
than 4j/£ inch.

“The ground he shall clear of all debris after the work.

[ 892 ]

4. Convcyam inn

|Thc Area Siicra.l "Furl hcrmoic, (lie shrines, altars, and
statues whic h are now in the campus, and whic h shall be later des-
ignated to him, all these he shall remove, carry to the enclosed
court, arrange, and set up in such position as shall have been
designated according to the judgment of the two mayors.

[Conditions of Approval.] “All the aforesaid work the con-
tractor shall do according to the judgment of the two mayors and of
their associates in the council of Puteolis, provided not fewer than
twenty of them shall be present when this matter is considered.
Whatever as many as twenty of them shall under oath and by
majority vote approve, shall stand approved ; whatever they shall
reject, shall stand rejected.

[Time Limit.] “Time for the completion of the work: The first
day of November ensuing.

[Payment.] “Time of payment of money: One half shall be
paid down as soon as the bonds secured by real estate shall have
been executed : the other half upon the completion and acceptance
of the work.

[Signed.] “C. Blossius, son of Quintus, [undertaking the con-
tract for] 1500 sesterces, [and offering] security to that amount.

“Q. Fuficius, son of Quintus
Cn. Tetteius, son of Quintus ~ ^ ,,

C. Gramus, son ol Gaius
Ti. Crassicius

But though the transactional instruments on Italian
soil, in classic times, remain in the realm of conjecture
only, modern archaeology has discovered some invaluable
examples of later practice, — chiefly from the papyri of
Egypt, where Roman law for several centuries after
Caesar's conquest was administered by Roman judges in

[ 393 ]

Vll. Roman Legal System

4. Conveyancing

the Greek language, and also from discoveries in the
Carpathian hills, the region conquered l>y Trajan.

Here is a simple deed of realty, in Dacia, from A. D.
150 : f

[Deed of Sale of Realty , A. D. 150.] "Andueia Batonis has
bought and taken title of the half part of a house, being the right
half on the front, situated in Greater Alburnus ward of the town
Pirustae, bounded by the houses of Plator Acceptianus and In-
genuus Callistus, for three hundred denarii from Veturius Valens.
The aforesaid half part of the house, together with its fences, en-
closures, approaches, walls, and windows, being sound and in prime
condition, the grantee is to hold lawfully and freely. And if any one
shall evict the grantee from the said house or any part thereof so
that the said Andueia Batonis or any of his assigns shall suffer in the
free and lawful possession and enjoyment thereof, then for so much
of such full and free possession as shall be diminished Veturius
Valens has promised to pay on sworn demand of Andueia Batonis a
ratable compensation. And the price three hundred denarii for the
said half part of the house Veturius Valens acknowledges that he
has received and holds from Andueia Batonis. And it is further
agreed between the parties that Veturius Valens shall pay the taxes
due on the said house up to the next assessment. — Done at Greater
Alburnus May 6th, in the consulship of Quintillus and Priscus.
Attest: L. Vasidius Victor, T. FI. Felix, M. Lucanus Melior, Plator
Carpus, T. Aurelius Priscus, Batonis Anneus; Veturius Valens,
grantor.”

And here is a Roman’s will of A. D. 189, executed in
Greek, in Egypt, but certified in a Latin copy: 8

[Will, A. D. 189.] "Gaius Longinus Castor, a veteran honor-
ably discharged from the praetorian fleet at Misenum, has made his
will. I direct that my slave Marcella, being over 30 years of age,

[ 394 ]

and my slave Cleopatra, being over 30 years of age, be freed, and
that each inherit an equal part of my estate . . . . . Let all other
heirs be disinherited. Let my heirs take possession each of her
share when .... But if the said Marcella suffer the fate of
mortals, then I will that her share of the estate go to Sarapion and
Socrates and Longus. Likewise for Cleopatra, I will that her share
go to Nilus. Whoever might be my natural heir shall be bound,
under penalty, to give, do and perform all the provisions here written
in this my will and shall hold the estate in trust for that purpose.
My slave Sarapias, daughter of my freedwoman Cleopatra, is to be
freed, to whom I give and bequeath five tracts of arable land which
I hold in the county of Caranis at the place known as Struthus;
likewise, one arable tract and a fourth part of the lowland ; likewise
a third part of my house and a third part of that house which I
bought heretofore from Prapetheutes mother of Thaseutis; likewise
a third part of the palm-grove which I own, near the canal known
as the old canal. I will that my body shall be prepared and buried
with due religious rites at the expense of my heirs. If I shall here-
after have left any writing in my own hand [as a codicil] I hereby
declare it to be good and valid. This will was made without
fraud. The 'family share' of this will Julius Petronianus has
bought for one sestertius, witness Gaius Lucretius Saturnilus.

"Chief witness to this will, Marcus Sempronius Heraclianus.

"The will was made in the county of Caranis, district of Arsinoe,
October 18th, consulship of the two Silani, in the 10th year of the
Emperor. . . [giving his titles]. If I shall have left other writings
in my own hand, I declare them valid.

"Opened [after the testator’s death] in the city of Arsinoe in the
Forum of Augustus at the office of collector of taxes on estates and
privileges on February 22 . . [dating by reign, etc.]. Other

[witnesses’] signatures Gaius Longinus Aquilas (who acknowledged),
Julius Volusius, Marcus Antistius Petronianus, Julius Gemellus a
veteran.

[ 395 ]

VII. Roman Legal System

[Two pages of codicil. | “I (inius Longinus ('aslor a veteran
honorably discharged from the praetorian Heel at Misenum have
made this codicil. Marcus Sempronius lleraclianus my esteemed
friend, I make executor on his own recognizance. To my cousin
Julius Serenus I give and bequeath four sesterces. I have written
this with my own hand on the 7th of February. Signed (as wit-
nesses) by Longinus Aquilas and Valerius Priscus. Signers also
Gaius Longinus Aquilas, Julius Philoxenus, Gaius Lucretius Saturn-
ilus, Gaius Longinus Castor, Julius Gemellus a veteran. — Opened
and acknowledged on the same day that the will was opened. Gaius
Lucius Geminianus, a jurisconsult of Rome. I have made this said
copy and declare it to be a correct copy of the original will.”

5. This advanced stage of law and practice had of
course been developed by a legal profession.

And yet, during the Republic, the Roman people had
not essentially gone beyond the stage reached by the
Greeks. Justice was not yet sharply distinguished from
general politics; nor were the juristic functions of the legal
profession fully developed.

The jurisconsult — the thinker and adviser solely upon
questions of law- — was as yet in an early stage of de-
velopment. In this period, he was more like the “law-
speaker” of the Germanic peoples,— the repository of the
sacred ancestral rites and civic traditions. His esoteric
knowledge was at the disposal of all who might consult
him. He was often an augur or a pontifex. Cicero, for
example, when he sought to prepare as an advocate,
attached himself first to Quintus Scaevola, the augur, and

[ 896 ]

5 . Legal Profession

alter his death to the other Scaevola, the pontifex maxi-
mus, an even more famous man, to absorb from their
utterances the traditions of the law. Gibbon’s pen-
picture of the early jurisconsult is still worth recalling: 11

“This occult science of the words and actions of law was the
inheritance of the pontiffs and patricians. Like the Chaldaean
astrologers, they announced to their clients the days of business and

repose On the public days of market or assembly

the masters of the art were seen walking in the Forum, ready to
impart the needful advice to the meanest of their fellow-citizens,
from whose votes, on a future occasion, they might solicit a grateful
return. As their years and honours increased, they seated them-
selves at home on a chair or throne, to expect, with patient gravity,
the visits of their clients, who at the dawn of day, from the town and
country, began to thunder at their door. The duties of social life
and the incidents of judicial proceeding were the ordinary subject of
these consultations, and the verbal or written opinion of the juris-
consults was framed according to the rules of prudence and law.
The youths of their own order and family were permitted to listen;
their children enjoyed the benefit of more private lessons; and the
Mucian race was long renowned for the hereditary knowledge of the
civil law.”

It was the orator, or advocate, who was the chief
personage in this period, — naturally enough, because the
tribunals whose decisions he courted were chiefly popular
ones, composed of laymen judging alike on law and facts.

Tradition at Rome looked upon advocacy before the
public assemblies as a part of the privilege and duty of the
patrician class; they were to use their influence, in legal

[ 897 ]

VII. Roman l.egal System

or political trouble, oil behalf of (heir numerous dan-
followers and friends. The latter were the “clients”; the
former the “patrons”. Hence the sons of the patricians —
like the Norman barons after the Conquest — might choose
this career of “patron” (or “orator”) as honorably as the
military career. And the introduction to the Forum
(analogous to the “call to the bar”) was a most important
epoch of life; the youth donned the “man’s toga”, pro-
ceeded to the Forum with a company of his friends and was
there formally introduced, by some distinguished citizen,
to the career of an orator. He would then attach himself
to some professional teacher of speech, and would also
frequent the chambers of some jurisconsult and listen to
his opinions.

But the orator’s knowledge of law was secondary to
his oratorical art. Cicero himself disparaged the im-
portance of the former attainment; “if you put me on my
mettle”, he said, in the speech for Murena, “busy as I am,
I will in three days declare myself a jurisconsult”. Of
Servius Sulpicius, a contemporary of Cicero’s, and second
only to Cicero as an advocate, the following anecdote is
recorded by Pomponius: ! Servius, preparing to argue
a case, came to ask the law from the famous Scaevola
(above-mentioned), but could not quite comprehend
Scaevola’s answer; he asked him again; was answered

[' 898 ]

5. Lentil Profession

again, and still could not understand; whereon Scaevola
indignantly censured his effrontery: “It is shameful for a
patrician, a man of good family, who argues causes, not
to be able to understand the very law that forms his
vocation” ; and Servius, stung by this reproach, then pro-
ceeded to study the law in earnest.

In this Republican period of Rome, then (as in
Athens) the orator, or advocate, is the chief and typical
figure of the legal profession; there is no sharp line be-
tween the advocate and the statesman; the jurisconsult
is in the background, and the advocate receives the
highest public honor.

The outstanding eminence of the advocate in Roman
life, and the pleasures of a successful ambition in that
field, were feelingly described by Tacitus, who had him-
self known success at the bar: in his “Dialogue on
Orators”, the speaker is Marcus Afer, an eloquent Gaul, a
distinguished leader of the bar:’

[Tacitus, on the Status of Advocates.] “What greater gratifica-
tion can there be for a free-born gentleman, fashioned by nature for
lofty pleasures, than to see his house filled to the door every day with
a company of persons of the highest rank, and to know that he owes
this compliment not to his wealth, not to his childless condition, not
to the fact that he holds some office or other, but to himself? Why,
people who have no one to leave their money to, and the rich and
the great, are always coming, young and poor though he may be, to
get him to take up their own cases or those of their friends. Can

[ 899 ]

VII. Roman Legai System

vast wealth or great power bring with it any satisfaction comparable
to the sight of grave and reverend seniors, men with the whole
world at their feet, freely owning that, though in circumstances of
the utmost affluence, they lack the greatest gift of all? Just look,
again, at the imposing retinue of clients that follows you when you
leave your house! What a brave show you make out-of-doors!
What an amount of deference is paid to you in the law courts!
. . ? . . . Are there any whose names are dinned at an earlier age
by parents into their children’s ears? Are there any to whom the
plain man in the street, our citizens in their working-clothes, more
frequently point as they pass by, saying, ‘There goes So-and-So’?
Visitors also and non-residents, as soon as they set foot in the
capital, ask for the men of whom in their country-towns and colonies
they have already heard so much, and are all agog to make them
out. ....

“Let me make this avowal about my own case. The day on
which I was invested with the robe of a senator, or that on which I
was elected quaestor, or tribune, or praetor, though a man of new
birth and a native of a community which is not at all popular at
Rome, — such days have been in no greater degree red-letter days for
me than those on which I enjoy the opportunity, to the modest
extent of my poor ability as a speaker, of securing an acquittal in a
criminal trial, or of pleading some case successfully before the cen-
tumviral court, or of undertaking the defence of some redoubtable
freedman or imperial agent in the emperor’s presence-chamber.
Then it is that I feel I am rising above the level of a tribune, a
praetor, or even a consul, and that I possess an asset which, unless
it comes unbidden, cannot either be conferred by letters-patent
or follow in the train of popular favour.

“Why, where is there a profession whose name and fame are to
be compared with renown in oratory? What class of men enjoys
greater prestige here in Rome?”

[ 400 ]

VII. 8 — Hortensius the Advocate

It is said that he never used notes for his own speeches, nor
took notes of his adversary’s

[ 401 ]

VII. Roman Legal System

materials of litigious debate; for he was fond of saying
that no one could be a good advocate without logic : k

[Cicero's Essay on Argumentation . ] “When we wish lo examine
any argument, we ought to know the Topics, — for so they are called
by Aristotle, being, as it were, sources from which arguments are
derived. Therefore we may give as a definition, that a Topic is the
source of an argument, and that, an argument is a reason which
causes men to believe a thing which would otherwise be doubtful

“Arguments are also derived from things which bear some kind
of relation to that which is the object of discussion. But this kind
is distributed under many heads; for we call some connected with
one another either by nature, or by their form, or by their resem-
blance to one another, or by their differences, or by their con-
trariety to one another, or by adjuncts, or by their antecedents, or
by their consequents, or by what is opposed to each of them, or by
causes, or by effects, or by a comparison with what is greater, or
equal, or less

“An argument is derived from the species, which we may some-
times name, in order that it may be more clearly understood; in this
manner: ‘If the money was bequeathed to Fabia by her husband,
on the supposition that she was the mother of his family; then, if she
was not his wife, nothing is due to her/ For the wife is the genus:
there are two kinds of wife; one being those mothers of a family who
become wives by coemption ; the other kind are those which are only
considered wives: and as Fabia was one of those last, it appears that
nothing was bequeathed to her.

“An argument is derived from similarity in this way: ‘If those
houses have fallen down, or got into disrepair, a life-interest in which
is bequeathed to someone, the heir is not bound to restore or to
repair them, any more than he is bound to replace a slave, if a slave,
a life-interest in whom has been bequeathed to someone, has died/

\m i

\

T

VII. 10 — Cicero’s Speech against Catiline in the Senate
This painting now decorates the wall of the modern Senate House at Rome

5 . Lc^d! Profession

“An argument is derived from difference (luis: 4 1 1 dors not

follow, if a man has bequeathed to his wife all llu* money whirh
belonged to him, that therefore 4 he* bequeathed all which was down
in his books as due to him; for there is a great difference whether the
money is laid up in his strong box, or set down as due in his ac-
counts.’

“An argument is derived from contraries thus: ‘That woman
to whom her husband has left a life-interest in all his property, has
no right, if his cellars of wine and oil are left full, to think that they
belong to her ; for the use of them is what has been bequeathed to
her, and not the misuse: and they are contrary to one another.’

“An argument is derived from adjuncts thus: ‘If a woman has
made a will who has never given up her liberty by marriage, it does
not appear that possession ought to be given by the edict of the
praetor to the legatee under that will ; for it is added that in that case
possession would seem proper to be given by that same edict under
the wills of slaves, or exiles, or infants.’

“Arguments are derived from antecedents, and consequents,
and contradictories, in this way: From antecedents: ‘If a divorce
has been caused by the fault of the husband, although the woman
has demanded it still she is not bound to leave any of her dowry for
her children.’

“From consequents: ‘If a woman, having married a man with

whom she had no right of intermarriage, has demanded a divorce,
since the children who have been born do not follow their father, the
father has no right to keep back any portion of the woman’s dowry.’

“From contradictories: ‘If the head of a family has left to his
wife in reversion after his son the life-interest in the female slaves,
and has made no mention of any other reversionary heir, if the son
dies, the woman shall not lose her life-interest. For that which has
once been given to any one by will cannot be taken away from the
legatee to whom it has been given without his consent; for it is a

[m\

VII. Roman Lc^a! System

contradiction for any one to have a right lo receive a thing, and ycl
to be forced to give it up against his will/

“An argument is derived from efficient causes, in (his way:
‘All men have a right to add to a common party wall a wall ex-
tending its whole length, either solid or on arches; but if any one
in demolishing the common wall should promise to pay for any
damages which may arise from his action, he will not be bound to
pay for any damage sustained or caused by such arches: for the
damage has been done, not by the party which demolished the
common wall, but in consequence of some fault in the work, which
was built in such a manner as to be unable to support itself.'

“An argument is derived from what has been done, in this way:
‘When a woman becomes the wife of a man, everything which has
belonged to the woman now becomes the property of the husband
under the name of dowry/

“By these Topics, then, which have been explained, a means of
discovering and proving every sort of argument is supplied, as if
they were elements of argument."

6. A court of justice at Rome was termed Basilica,^
oddly enough, from a Greek word of royalty. These
spacious edifices had become a prominent feature of
Rome’s city architecture. 11 Four of these court-houses, —
the Julian, the Emilian, the Domitian, and the Constan-
tine Basilicas — were in or near the main Forum, close by
the meeting-place of the electoral assembly. They were
the first secular buildings devoted to justice in any legal
system. The courts were so thronged with judicial
business that twenty were erected successively within five
centuries, in the capital city alone; and remnants of other

[ 406 ]

6 . (louvt* I louses

VII. 11 — The Ulpian Court-House
Twenty of these court-houses, in all, were erected in Rome

Roman court-houses can still be seen in any country of
Europe, Asia, or Africa where Roman government
reached. Important criminal or political trials might be
held in the Forum, in the open air; and at the trial of Milo
(made famous by Cicero), which involved great factional
feeling, an immense multitude, guarded by soldiers,
packed the Forum, and vast numbers crowded roofs and
windows in every adjacent spot, to follow the proceedings.

There were various tribunals at Rome. In the early
days of the Republic the entire popular assembly might
sit in judgment (and there came to be sixty thousand

[ 407 ]

A 7 //. Roman Legal System

qualified to vote). But, as at Athens, (his purely demo-
cratic mingling of politics and justice became impracti-
cable, and various smaller bodies were organized for the
decision of different classes of cases. Sometimes — for
what we should call impeachment cases — that body was
the Senate or other General Assembly; sometimes a large
special jury selected from a general panel (in the trial of
Milo, fifty-one jurors voted) ; sometimes a smaller body of
assessors or referees, assisting the praetor, who received
the pleadings, — and this usually in what we should call
ordinary civil suits.

It cannot be gainsaid that in the Republican period
the dominant spirit had not progressed far beyond that of
Greek justice. These lay-courts were judges both of law
and fact; there was little judicial direction of law, and no
appeal of law. The tribunal was final, in its mingling of
law and fact, justice and clemency, logic and popular
emotion.

(II) The Period of the Early Empire

7. This method of uncontrolled popular justice
would hardly have developed a science of law, any more
than it did in Greece. But, as this period closes, the pro-
fessional judge and jurist come to the front, and the jury-
advocate ceases to be the typical figure.

[ 408 ]

* r

VII. 12 — Constantine Court-House

The praetor sat in his chair at the apse, and the throng of lawyers, witnesses, clients, and attendants

7. Trial Methods

Under (lu* eni|H.Tors, lay juries disappeared ; and most
trials, both civil and criminal, took place under a single
judge. As a trial judge, the praetor united in himself all
the powers that we distribute between civil and criminal
tribunals, common law and equity courts. The praetor,
who was of senatorial rank, sat in his chair at the apse or
chancel of the basilica; and the throng of lawyers, clients,
witnesses and bailiff's, gathered in front of him, standing,
as in old Westminster Hall in England . 12

No eye-witness record of a praetorian criminal trial at
Rome has come down to us. But the emperor in person
frequently heard and decided causes, especially im-
portant criminal charges; and we possess a lively sketch,
by Philostratus, of the trial of the philosopher Apol-
lonius, about A. D. 90, before the emperor Domitian.
Apollonius was a strange character, a combination of
Socrates, Diogenes, and St. Francis; claiming certain
supernatural powers, and traveling all over the Roman
world. When the vicious and cruel Domitian was
at the height of his tyrannous rule, and was in special
fear of a conspiracy against his life by Nerva (his suc-
cessor), some sycophant laid an information for sedition
against Apollonius, as being a friend of Nerva, and the
emperor ordered his arrest. The principal charge was
that he had killed and eaten a boy, as a sacrifice to

[ 409 ]

VII. Roman Legal System

enable him to prophecy success to Nerva. The charge
was preposterous; but Domitian’s ruthless credulity
was known, and Apollonius’ friends advised him to
remain hidden in Greece. But Apollonius, conscious of
rectitude, journeyed straightway to Rome and sur-
rendered himself. After a long sojourn in prison, he was
brought to trial before the emperor. During his trial he
conducted himself with the same daring nonchalance that
is recorded of Socrates; although he had been fully warned
that the emperor was determined to put him to death, and
was “merely going through the form of a trial to preserve
a semblance of justice”: 1

[Apollonius' Trial.] “Let us now repair to the law-court to
listen to the sage pleading his cause; for it is already sunrise and the
doors are thrown open to admit the celebrities. And the compan-
ions of the emperor say that he had taken no food that day, because,
I imagine, he was so absorbed in examining the documents of the
case. For they say he was holding in his hands a roll of writing of
some sort, sometimes reading it with anger, and sometimes more
calmly. And we must needs figure him as one who was angry with
the law for having invented such things as courts of justice.

“But Apollonius, as we meet him in this conjuncture, seemed
to regard the trial as a dialectical discussion, rather than as a race
to be run for his life; and this we may infer from the way he behaved
before he entered the court. For on his way thither he asked the
clerk who was conducting him, where they were going; and when
the latter answered that he was leading him to the court, he said :
‘Whom am I going to plead against?’ ‘Why,’ said the other, ‘against
your accuser, of course, and the emperor will be judge.’ ‘And,’ said

7. Trial Methods

Apollonius, ‘who is going to be judge between myself and the
emperor? For I shall prove (hat he is wronging philosophy.’ ‘And
what concern,’ said the other, ‘has the emperor for philosophy, even
if he does happen to do her wrong?’ ‘Nay, but philosophy,’ said
Apollonius, ‘is much concerned about the emperor, that he should
govern as he should.’ The clerk commended this sentiment, for
indeed he was already favourably disposed to Apollonius, as he
proved from the very beginning. ‘And how long will your pleading
last by the water-clock’s reckoning? For I must know this before
the trial begins.’ ‘If,’ said Apollonius, ‘I am allowed to plead as long
as the necessities of the suit require me to, the whole of the Tiber
might run through the meter before I should have done ; but if I am
only to answer all the questions put to me, then it depends on the
cross-examiner how long I shall be making my answers.’ . . . . .

“This was how he prepared himself to confront the despot’s
manoeuvres; and as he waited before the court another clerk came
up and said: ‘Man of Tyana, you must enter the court without
your cloak.’ ‘Are we then to take a bath,’ said Apollonius, ‘or to
plead?’ ‘The rule,’ said the other, ‘is not to regulate the style of
dress, but the emperor aims to prohibit your bringing here either
amulet, or book, or any papers of any kind.’ ‘And not even a cane,’
said Apollonius, ‘for the back of the idiots who gave him such advice
as this?’ Whereat the accusing witness (who stood by) burst into
shouts: ‘O my emperor,’ he said, ‘this wizard threatens to beat me,
for it was I who gave you this advice.’

“. . . Such were the preliminary skirmishes which preceded
the trial. But the conduct of the trial itself was as follows: The
court was fitted up as if for an audience listening to a panegyrical
discourse; and all the illustrious men of the city were present at the
trial, because the emperor was intent upon proving, before as many
people as possible, that Apollonius was an accomplice of Nerva and
his friends. Apollonius, however, ignored the emperor’s presence so
completely as not even to glance at him; and when the accuser up-

WO]

[Hi]

1/ II. Roman Legal System

braided him for want of respect, and bade him turn his eyes upon
the god of all mankind, Apollonius raised his eyes In the ceiling, by
way of giving a hint that he was looking up to Zeus, and that lie-
regarded the recipient of such profane flattery as worse than he who
administered it. Whereupon the accuser began to bellow and spoke
somewhat as follows: ‘Tis time, my sovereign, to apportion the
clock-water, for if you allow him to talk as long as he chooses, he will
choke us. Moreover I have a roll here which contains the heads of
the charges against him, and to these he must answer, so let him de-
fend himself against them one by one.’

“The emperor approved this plan of procedure and ordered
Apollonius to make his defence according to the accuser’s demand ;
however, he ignored some of the charges as not worth discussion,
and confined himself to four questions which he thought were em-
barrassing and difficult to answer. ‘What induces you,’ he said,
‘Apollonius, to dress yourself differently from everybody else, and
to wear this peculiar and singular garb [i. e. linen only, not wool]?’
‘Because,’ said Apollonius, ‘the earth which feeds me also clothes
me, and I do not like to bother the poor animals.’ The emperor
next asked the question : ‘Why is it that men call you a god?’ ‘Be-
cause,’ answered Apollonius, ‘every man that is thought to be good,
is honoured by the title of god.’ (I have shown in my narrative of
India how this tenet passed into our hero’s philosophy.) The third
question related to the plague in Ephesus; ‘What motived, he said,
‘or suggested your prediction to the Ephesians that they would
suffer from a plague?’ ‘I used,’ he said, O my sovereign, a lighter
diet than others, and so I was the first to be sensible of the danger;
and if you like, I will enumerate the causes of pestilences.’ But the
emperor, fearful, I imagine, lest Apollonius should reckon among
the causes of such epidemics his own wrong-doing, and his incestuous
marriage, and his other misdemeanors, replied: ‘Oh, no, I don’t care
to hear about that.’

\m i

7. Trial Methods

“And when In* came In I lie fourth question, which refilled In
laiding (he conspiracy nl| Nerva and his friends, instead of hurrying
straight on to it, he allowed a certain interval to elapse; and after
long reflection, and with the air of one who fell dizzy, he put his
question in a way which surprised them all; for they expected him
to throw off all disguise and blurt out the names of the persons in
question without any reserve, complaining loudly and bitterly of
the sacrifice [of the boy by Apollonius]; but instead of putting the
question in this way, he beat about the bush, and said: ‘Tell me,
you went out of your house on a certain day, and you travelled into
the country, and you sacrificed the boy — I would like to know for
whom?’”

[At this point Apollonius was ready with a complete defence, in
a prepared written speech, which however he did not deliver, choos-
ing rather the daring alternative of demanding proof by the in-
former. The passage which he was ready to deliver on this part of
the charge was as follows:]

“‘What then, O sycophant, was I really doing on that night?

Here is my answer: Philiscus of Melos, who was my

fellow-pupil in philosophy for four years, was ill at the time; and I
was sleeping out at his house, because he was suffering so terribly
that he died of his disease. Ah, many are the charms I would have

prayed to obtain, if they could have saved his life

Those are the facts, my prince, which you may learn also from
Telesinus the consul; for he too was at the bedside of the man of
Melos, and nursed him by night like myself. But if you do not
believe Telesinus, because he is of the number of philosophers, I call
upon the physicians to bear me witness, and they were the follow-
ing: Seleucus of Cyzicus and Stratocles of Sidon. Ask them

whether I tell the truth. And what is more, they had with them
over thirty of their disciples, who are ready, I believe, to witness
to the same fact; for if I were to summon hither the relatives of
Philiscus, you might probably think that I was trying to interpose

[ 418 ]

V I /. Rom an I a' I' d l System

delays in the case; for they have lately sailed from Koine to the
Melian country in order to pay their last sad respects to the dead.

Come forward, O ye witnesses, for you have been expressly sum-
moned to give your testimony upon this point.’ [The witnesses were
to give their evidence. Apollonius continues:] ‘With how little
regard then for the truth this accusation has been drawn up, is
clearly proved by the testimony of these gentlemen; for it appears
that I spent that night not in the suburbs, but in the city; not out-
side the wall, but inside a house; not with Nerva, but with Philiscus;
not slaying another, but praying for a man’s life; not thinking of
matters of state, but of philosophy; not choosing a revolutionist to
supplant yourself, but trying to save a man like myself. What
then is that informer doing in this case? What becomes of the
absurd stories of victims slain? How dare he ask you to believe
such lies? For what never took place will be real, if you decide that
it did take place.’” J

[Instead of the foregoing speech, however, Apollonius answered
as follows :]

‘‘And Apollonius as if he were rebuking a child replied to the
emperor: ‘You are cleverly assuming the very fact charged; for if
I did leave my house, I could indeed have been in the country; and
if I was there, then I could have offered the sacrifice: and if I offered
it, then I could have ate of it. But let these assertions be proved by
trustworthy witnesses.’ Such a reply on the part of the sage
aroused louder applause than beseemed the court of an emperor;
and the latter, deeming the audience to have borne witness in favour
of the accused, and also not a little impressed himself by the an-
swers he had received, for they were both firm and sensible, said:

‘I acquit you of the charges; but you must remain here until we have
had a private interview.’ Thereat Apollonius was much encouraged
and said: ‘I thank you indeed, my sovereign; for I would fain tell
you how by reason of these miscreants like this informer here your
cities are in ruin, and the islands full of exiles, and the mainland of

7. Trial Methods

lamniliil ions, and your armies of rovvanlice, and (lie senate of sus-
picion. Accord me then, if you will, opportunity to speak; but if
not, then send someone to take my body, for my soul you cannot
take. Nay, you cannot take even my body.

bor thou shall not slay me, since I tell thee I am not mortal.’

“And with these words he vanished from the court; which was
the best thing he could do under the circumstances, for the emperor
clearly intended not to question him sincerely about the case, but
about all sorts of irrelevant matters. For he took great credit to
himself for not having put Apollonius to death.”

In every provincial city, from Britain to Palestine, the
Roman praetor — subject only to the emperor’s rescripts
— dispensed justice according to Roman law. A trial-
scene in Athens, under the Roman proconsul, about A. D.
330, is preserved for us in a pen-picture by the biographer
of Julian, one of the leading sophist-philosophers who then
dominated the intellectual world. The sophists, at that
period, were held in highest public honor, occupied of-
ficial professorships, received enormous emoluments (a
lecture fee of 250,000 drachmae, or $50,000, is recorded),
and possessed large schools or factions of followers, who
jealously maintained the honor of their rival leaders.
Two of these schools at Athens — one led by Julian, the
other by Apsines the Spartan — had come to blows; hence
the trial, as described by Julian’s biographer : m

[Trial of the Sophists.] “I must set down and introduce into this
narrative the following sample of the man’s all-round ability and
judgment. It so happened that the boldest of the pupils of Apsines

[ 416 ]

/ 7 //. Roman Legal System

7 . Trial Methods

had, in a fierce encounter, got the upper h;md of Julian’s pupils in
the course of the war of factions that they kept up. After laying
violent hands on them in Spartan fashion, though the victims of
their ill-treatment had been in danger of their lives, they prosecuted
them, as though the Apsinians themselves were the injured parties.
The case was appealed to the proconsul, who, showing himself stern
and implacable, ordered that the defendants’ teacher also be ar-
rested, and that all the defendants be brought in chains, like men
imprisoned on a charge of murder. It seems, however, that, for a
Roman, he was not uneducated or bred in a boorish and illiberal
fashion. Accordingly Julian was in court, as he had been ordered,
and Apsines was there also, not in obedience to orders but to help
the case of the plaintiffs. Now all was ready for the hearing of the
case, and the plaintiffs were permitted to enter. The leader of the
disorderly Spartan faction was one Themistocles, an Athenian, who
was in fact responsible for all the trouble, for he was a rash and head-
strong youth and a disgrace to his famous name. The proconsul at
once glared fiercely at Apsines, and said: ‘Who told you to come
here?’ He replied that he had come because he was anxious about
his boys. The magistrate concealed his real opinion and said no
more; and then the prisoners who had been so unfairly treated came
again before the court, and with them their teacher. Their hair was
uncut and they were in great physical affliction, so that even to the
judge they were a pitiful sight. Then the plaintiffs were told to
speak, and Apsines began to make the speech ; but the proconsul
interrupted him and said: ‘This is not the procedure approved by
the Romans. He who delivered the speech for the prosecution at
the first hearing must try his luck at the second also.’ There was
then no time for preparation, because of the suddenness of this
ruling. Themistocles had made the speech for the prosecution be-
fore, but now on being compelled to speak he changed colour, bit
his lips in great embarrassment, looked furtively towards his com-
rades, and consulted them in whispers as to what they had better
do. For they had come into court prepared only to shout and

applaud vociferously their teacher’s speech in their behalf. There-
fore profound silence and confusion reigned, — a general silence in
the court and confusion in the ranks of the accusers. Then Julian
humbly interposed: ‘At least give me leave to speak.’ Whereupon
the proconsul exclaimed: ‘No, not one of you shall plead, you

teachers who have come with your speeches prepared, nor shall any
one of your pupils applaud the speaker; but you shall learn forth-
with how strict and complete is the justice that the Romans dis-
pense. First let Themistocles go on with his speech for the prose-
cution, and then he whom you think best fitted shall speak in de-
fence.’ But no one spoke up for the plaintiffs, and Themistocles’
failure was a scandal and a disgrace to his great name.

“And then, when the proconsul ordered that anyone who could
should reply to the original speech of the prosecution (at the first
hearing) Julian the sophist said: ‘Proconsul, in your superlative
justice you have transformed Apsines into a Pythagoras, in that
tardily but very properly he has learned how to preserve silence; for
Pythagoras long ago (as you are well aware) taught his pupils
silence. But, if you will allow one of my pupils to make our defence,
give orders for Prohaeresius to be released from his bonds, and you
shall judge for yourself whether I have taught him the Attic manner
or the Pythagorean.’ The proconsul granted this request very
graciously (as Tuscianus, who was present at the trial, reported to
the author), and Prohaeresius came forward from the ranks of the
defendants without his fetters, before them all, after his master had
called out to him (not in a loud and piercing voice, such as is used
by those who exhort and incite athletes contending for a garland,
but still in penetrating accents) : ‘Speak, Prohaeresius! Now is the
time to make a speech!’ He then first delivered a prooemium of
some sort (Tuscianus could not exactly recall it, though he told me
its purport). It launched out, and soon slid into a pitiable account
of their sufferings, and he inserted an encomium of their teacher.
In this prooemium he let fall only one allusion to a grievance, when

[416]

[417]

A 7 //. Roman Lena I System

he pointed out how headlong the proconsular authority had been,
since even had there been proof of their guilt it was not decent for
them to be subjected to such indignities. At this the proconsul
bowed his head, and was overcome with admiration of the force of
his arguments, his weighty style, his facility and sonorous eloquence.
Meanwhile, they all longed to applaud, but sat cowering as though
forbidden to do so by a sign from heaven, and a mystic silence per-
vaded the place. Then he lengthened his speech into a second pro-
oemium as follows (for this part Tuscianus remembered) : ‘If, then,
men may with impunity commit any injustice and bring accusations
and win belief for what they say, before the defence is even heard,
so be it! Let our city be enslaved to Themistocles!’

“Then up jumped the proconsul, and shaking his purple-edged
cloak (the Romans call it a ‘tebennos’), that austere and inexorable
judge applauded Prohaeresius like a schoolboy. Even Apsines
joined in the applause, not of his own free will, but by sheer force of
necessity. Julian his teacher could only weep with joy. The pro-
consul ordered all the accused, but of the accusers their teacher
only, to withdraw, and then taking aside Themistocles and his
Spartans, he gave them a practical example of the floggings of
Lacedaemon, and added besides the kind of flogging in vogue at
Athens.”

The most momentous trial in Roman history took
place in the Praetorium at Jerusalem.^ “And they began
to accuse Him, saying, We found this man perverting our
nation.” And Pilate at first sent Him to Herod, the
Hebrew king; but Herod sent Him back to Pilate; for
though the Hebrew people still lived according to their
own laws, the Roman praetor alone could give a judgment
of death (ante, Chap. III). So Pilate — the example, for

[ 418 ]

VII. 13 — Jesus Arraigned before Pilate

VII. 14 — Pilate Asking the Multitude
“And Pilate saith unto them, ‘What then shall I do unto Jesus?’ ”

Vll. Roman Legal System

granted, not asked for.” Historians agree as to the sig-
nificance of this new practice. Augustus’ measure had
made it now possible for Roman law to become a science,
and thus to have a different fate in the world from Greek
law and to form a new type in legal evolution.

The supreme period of Roman juristic science was
reached in the 2d and 3d centuries A. D. By this period,
the Roman legal instinct had developed far beyond that
of any of the earlier races, Oriental or Greek. The ad-
ministration of justice, on the one hand, had been separ-
ated from general political administration; and, on the
other hand, justice by law had been differentiated from a
primitive popular justice by referendum. The praetor
had become the typical judge of our modern ideals, the
first of the kind — secular, not priestly; a lawyer, not a
layman; an adjudicator, not an administrator. Profes-
sional jurists in copious treatises expounded legal princi-
ples in systematic form. Schools of law-study arose and
multiplied.

Five great names may be chosen from many, typifying
these achievements, — Julian, the judge; Ulpian and
Papinian, the counsellors; Quintilian, the professor; and
Gaius, the jurist.

9. Julian, the judge, 16 made Roman practice cos-
mopolitan, doing for it what Lord Mansfield did for

[420]

*

I

r

VII. 15— Julian the Judge

To him is attributed the authorship of the Perpetual Edict, —
the first Code of Practice, as it would be called today

[421]

IS 1 1. Roman Legal System

English commercial law. lie had already written a
treatise numbering ninety books. But about A. I). ISO, as
praetor, he consolidated the various practice rules that
had been annually announced by the preceding praetors
of various jurisdictions, and compiled a single code of
practice, thenceforth to be perennial, and known as the
Perpetual Edict. A few passages will illustrate the style
of this unique code, — the first published code of practice
in any system :°

[The Praetorian Perpetual Edict.} “[11a] Parties sued at law
must either appear in person or appoint a surety.

“[b] No one shall, without my consent first given, maintain a
suit against his parent, his patron, or patroness, or the children or
parents of a patron or patroness.

“[c] If such suit be instituted against a parent, or patron or
patroness, or the children or parents of a patron, or his own children
or any one in his wardship, or his wife, or his daughter-in-law, any
person whosoever may be received as surety.

“[d] If a party has appointed a surety and then neither can be
found nor is defended by his surety, I will order an attachment of
his goods.

“[12] No one shall by force release a party sued at law nor by
malicious contrivance aid his release. . . .

“[40] Bad faith. On a transaction found to have been done in
bad faith, if no other remedy applies and adequate grounds appear,
and less than a year has elapsed since first the party could have
known of the bad faith, I will give judgment.

“[41] Minors under 20. A transaction with a person under 20
years of age, whatever the subject of it may be, I will declare cen-
surable.

( ). T he Judges

| I2| C ivil inc;i|>;icily. If ;my person, niiin or woimin, is Ibimd
to have heroine civilly incapacitated alter any transaction done or
had with him or her, I will give judgment against, him or her, equally
as if that fact had not supervened. . . .

“[61] Throwing or pouring into the highway. If on any place
where a way is used by the public or where people are standing, any
substance is thrown or poured, for the damage thus caused or done
I will give judgment, in double amount, against the party there
dwelling. If by such force a free citizen is found to have come to his
death, I will give judgment for 50 m sesterces. If he lives and is
found to have been injured, I will give judgment, against the party
liable, for whatever sum shall appear to be juste If a slave is found
to have done it without his master’s knowledge, I will add to the
order: ‘with privilege of surrendering the slave in lieu of money.’

“[62] No one shall maintain in or on the eaves of his house, over
a place where the public uses a way or is standing, any article the
fall of which could cause damage. If any one violates this, I will
give judgment against him for 10 m sesterces. If a slave is found to
have done it without his master’s knowledge, I will order that he be
defended by a surety or be surrendered in lieu of compensation. . . .

“[64] Gamesters. If any one assaults a person in whose house a
dicing game is carried on, or otherwise does damage to him, or if at
such time any article is taken from his house, I will not give
judgment.

“If any person by reason of a dicing game has used force, I will
proceed against him as may be necessary ....

“[104b] After the death of a person who is in wardship to an-
other, or after he has been emancipated or manumitted or trans-
ferred, if as to his separate estate anything has been done in bad
faith, by the party in whose wardship he was, to the diminution of
the estate, then within one year after knowledge of the fact could
have been obtained, I will give judgment. . . .

I

[W]

VII. Roman Lena I System

( ). The J mines

“[188] Riot. If in (lie course of ;i riot any person is found
maliciously to have caused damage or loss, I will give judgment
against him, for double the amount of the damage if sued for within
one year after knowledge could have been obtained, and for simple
damages if after the year.

“[189] Fire, Collapse, Shipwreck, Forcible Capture of Raft or
Vessel. If any one is found, in the course of a fire or building-
collapse or shipwreck or forcible capture of a raft or vessel, to have
converted or received in bad faith any article, or to have done any
damage in the premises, I will give judgment quadruple the amount,
if suit is brought within one year after knowledge could have been
obtained, and for simple damages if after the year. Likewise I will
give judgment against a slave or member of the household.”

The forms of judgment used by the praetor at Rome
have not come down to us. But the Egyptian papyri,
preserving the doings of Roman administrators, in the
Greek language used in that region, have furnished a few
examples, which may be taken as fairly representative of
the general style on Roman soil in the classic imperial
period. The following entry, in Greek with a Latin copy,
from the year A. D. 124 , deals with a lawsuit over a will,
and shows the parts played by judge, counsellor (juris-
consult), advocate, and clerk of court : p

[Court Record of A. D. 124.] “Extract from the record of pro-
ceedings of Blaesius Marianus, prefect of the first cohort of Cilician
cavalry, by appointment of Haterius N epos, chief prefect, in the
8th year of the Emperor Caesar Trojan Hadrian Augustus and
Pharmiti XVIII [15 July A. D. 124], the counsellor Claudius Arte-
midorus being in attendance.

“Aphmdisius son of Apollonius againsl Ammonias son of Apio.
Aphrodisius by his advoc ate Sotericlms alleges that he had entered
into marriage, without writing, with a certain woman Saraputa, and
had by her had a son Origen, now deceased, and others; that the law
vests in the father the inheritance of sons born of a marriage not
contracted in writing; that the defendant now claims as heir to [the
son] Origen under a will [of the said Origen] ; that the latter had not,
according to law, the power to make a will in favor of any third
person during his father’s lifetime; that the will made in favor of the
defendant was therefore invalid and unjust; and that the plaintiff
claims title to the property left by his son.

“Ammonius by his advocate Marcianus replies that the laws of
Egypt accord power to all persons whomsoever to make a will
leaving their property to whomsoever they may choose; that he the
defendant, being the son of a deceased brother [of the plaintiff] had
been made heir [by the will], together with another son [of the de-
ceased brother]; and that the will had the required number of
witnesses.

“Blaesius Marianus [said], ‘Read the will of Origen’, which
being read was dated in the 8th year of Emperor Hadrian.

“Then Blaesius Marianus, prefect of the first cohort of Cilician
cavalry, after consultation with the counsellor Artemidorus dictated
the order here reading as follows to wit: Origen, the deceased, born
to his father from a marriage contracted without writing, appears to
have nominated an heir, but he had not the power to make a will
during the lifetime of his father.

“And Ammonius [the defendant] then averring that Origen was
the issue of a marriage contracted in writing and Aphrodisius [the
plaintiff] on the other hand repeating his averment that Origen was
not the issue of a marriage contracted in writing, Blaesius Marianus,
prefect of the first cohort of Cilician cavalry [ordered] that Aphro-
disius make proof of this fact within 60 days.

\m )

[W]

VII. Roman Legal System

in the hands of a legal profession, highly (rained and wise.
For us, these two bear also this sentimental distinction,
that (with Paul us) they once dispensed justice in the
island of Britain, as Roman magistrates in a Roman
basilica,

Papinian 16 was termed, in Justinian’s Digest, “the
illustrious” ; for he had received the extraordinary dis-
tinction that among the five principal jurisconsults, where
they were divided in opinion, his opinion if recorded
should prevail. But his truest fame should be that he
died a martyr to his professional honesty ; for when the
ruthless Emperor Caracalla caused the assassination of
his own brother, who shared the throne with him, and
then directed Papinian, his attorney-general, to prepare a
legal opinion justifying the deed, Papinian courageously
refused, with the memorable words, “I do not find it so
easy to justify such a deed as you did to commit it”. And
for this rebuke Papinian was himself put to death.

Of the style of “consultatio”, or opinion, which these
counsellors prepared, no textual examples from the
classic period have survived. But from this later speci-
men (dating in the early A. D. 500’s, and doubtless of
inferior grade) we can re-construct the general type: r

[Opinion of a Jurisconsult .] “You have consulted me on the
question whether an agreement for partition of an inheritance be-

[ 428 ]

10. The Counsellors

Iwirn brother and sister is valid when the woman (as you say)
signed by command and under duress of her husband and without
knowledge of the nature and effect of the terms contained or in-
serted in the said agreement.

“(2) My opinion is that the agreement as stated in your re-
quest for an opinion is void in law, and that it cannot stand, since it
is entirely violative of the safeguards provided by the law.

“(3) And first, on the facts as you state them, according to the
said laws concerning agreements accompanied by force, an agree-
ment endangering liberty and exacted by fear is most plainly void ;
for it is definitely laid down that no one shall be compelled to
promise against his will.

“(4) Furthermore, a passage of these well-known laws runs
thus: ‘Which he did of his own free will and desire’. Who is so
destitute of wisdom and lacking in intelligence as to assert that a
contract should be valid and binding which a woman has signed
under coercion in fear of her husband, and thus cannot be supposed
to have had free will and independent discretion?

“(5) Furthermore, by the same principle of law above referred
to, such an agreement is deemed to be of no effect, as the laws
below quoted show.

“(6) Gregorianus Bk. II: ‘Emperor Severus A. Julius Con-
serturinus. It has long since been decided that transactions exe-
cuted through force and fear, should be void, even without the aid
of the Prince: Approved July 1 in the consulship of Dexterus II and
Priscus.’

“(7) Also another passage in the above cited volume: ‘Em-
peror Antoninus A. Julius Basilae. It is undoubtedly the law that
agreements made against a person’s will or contrary to the laws and
ordinances are void. PP. 28 July in the consulship of Antoninus IV
and Albinus.’

[ 429 ]

VII. Roman Venal System

“(H) ‘Emperor Alexander A. I )ionysius: ‘The passage providing
that an agreement made in had faith is void, etc. Pl\ 12 Aug. in tin*
consulship of Alexander Augustus/

“(9) Also other provisions in the same hook and title: ‘Km-
perors Diocletianus and Maximianus A. A. Aurelius Heradidus: If

you without authority from your wife released a surety for her op-
ponent, and it can be shown by plain documentary proof that this
was done without her knowledge and against her will, the release
will be of no effect. PP. 6 Sept, in the consulship of Diocletianus
1 1 1 1 and Maximianus III/

“(10) Likewise other provisions in the same book and title:
‘Emperors Carus Carinus and Numerianus AA. Aurelius: Since,
as you assert, the settlement was made for a fraudulent purpose, the
authority of law makes void what was done between you: PP. 8
December in the consulship of Carinus and Carus/

“(11) Therefore, if the laws are to be preserved and the statutes
of the emperors are to be respected, the agreement of which we have
been speaking has manifestly no force.

“(12) At this point, I have thought it worth while to quote the
Theodosian law concerning agreements, because at the beginning of
the said ordinance it runs thus: ‘If he has sought to repudiate

agreements or settlements which he has executed of his free will and
discretion, let him pay the penalty, lose the profits, and incur in-
famy"; but this applies to a person who had free discretion and not
to one who acted unwillingly and had not the will to act/"

Ulpian" was the author of that lofty definition,
“ Justice is the constant and perpetual will to allot to
every man his due”. He wrote twenty-three treatises;
and to his epigrammatic invention we owe many of our
familiar law-Latin maxims, such as “Volenti non fit
injuria”.

[ 480 ]

10. The Counsellors

VII. Roman Legal System

The logical development of the law that now ensued,
through the writings of these jurisconsults, may be illus-
trated by some passages from one of Ulpian s treatises.
In the concrete discussions of case-law and in the citations
of precedents and opinions, their method, regarded as an
original invention, is comparable with that of the Hebrew
rabbis, the Hindu pundits, the Mohammedan muftis, and
the Japanese judges:

[Ulpian in Book XXIX of his Commentary on Sabinus ;]
“According to Celsus, if property is sold and then is stolen
before it is delivered to the purchaser, the latter has no right of
action for conversion; the right still remains with the vendor. No
doubt (he continues) he can be called upon to assign to the pur-
chaser the action for conversion, and the other remedies as well ; or if
he should have already recovered anything himself by any of these
actions, he must make it over to the purchaser: all this is sound
law; and Julianus says the same. It is certain that the goods are at
the risk of the purchaser, always provided the vendor exercises due
care up to delivery.

“(1) So true is it that previous to delivery the purchaser has no
right of action for conversion, that the question has been asked
whether the purchaser is liable to the action if he converts the thing
himself. What Julianus says is this (Dig. lib. xxiii) : ‘if, while it is
the duty of the vendor to see to the thing being safe, the purchaser
carries it off, having first paid the price, the latter is not liable; but
if he takes it without paying, then no doubt he is liable; it is just as
if he had taken away his creditor’s security.’ (2) It may be added
that a tenant has the action, though he is not owner, as he has the
requisite interest. (3) With regard to the case of a depositee, it is a
fair question whether he has the action or not. But he is only re-

sponsible for fraud, consequently tin* law is, and very reasonably,
that he has no right of action for conversion. In fact, if he com-
mitted no fraud, where is his interest ? If he did commit fraud, then,
no doubt the risk is his, still he cannot acquire a right of action by
his own fraud. (4) This is in keeping with what Julianus says
(Dig. lib. xxii) : — ‘as it is established law in respect to converters in
general that they cannot bring an action for conversion in respect of
a thing they converted themselves, it follows that a depositee will
not be able to bring the action, however true it is that when a man
wrongfully handles a thing it puts it at his risk.’ (5) Papinian dis-
cusses the following case: ‘I held two slaves as security for 10 aurei,
and one was converted, but the other by himself (the one that re-
mained) was worth as much as the sum secured. If I sue for con-
version, am I obliged to make my unit of damages 5 and no more,
on the ground that the slave remaining is good for the other 5; or is
it the proper view, seeing that that slave may chance to die, that I
ought to make the unit 10, even though the slave I have still got is
of ample value?’ This last is Papinian ’s own opinion ; we ought not,
he says, to consider the security the converter left untouched, but
the one he took. (6) He adds the following: — ‘If a slave is con-
verted from me whom I held as security for a debt of 10, and I re-
cover 10 from the converter by an action for conversion, then, if the
slave should be converted again, I have no right of action, having
no longer any interest, as I have already recovered once. That is,
always provided that the conversion was through no negligence of
mine; if the negligence was mine, then I can sue, as I have the
requisite interest, because I am liable on the action for redemption.
Assuming that there is no negligence on my part, then the action,
which, as we have seen, is not open to me, can certainly be brought
by the owner’. This opinion is supported by Pomponius (ad Sabi-
num lib. x). (7) These writers also hold that if the two slaves

above mentioned should both be converted on the same occasion,
the pledgee has the action in respect of each, that is to say, not in
respect of each for the whole debt, but for such portion of the debt

f m\

\ 433 ]

V II. Roman Legal System

as represents his interest in that particular slave, the portion being
ascertained by dividing the debt proportionally to the values of the
slaves; but if the two slaves are converted at different times, then if
the creditor recovers the whole debt in respect of one, he will get
nothing by an action brought in respect of the other

“In the action for conversion the thing taken need only be so
far described as to be identified. (1) The weight of receptacles
need not be given, it is enough to say, ‘a dish,’ 'a discus, 1 ‘a cup';
but the material should be given, such as gold, silver, etc. (2) If
the subject of the action is unwrought silver, it should be described
as a mass of silver, and the weight should be given. (3) In the case
of silver coins, the plaintiff must give the number, and similarly he
would have to say that so many gold coins or more have been taken
from him. (4) As to an article of dress, the question has been
raised whether the colour should be specified. No doubt this ought
to be done; in the case of a gold cup you specify the material, and in
the same way you ought to give the colour of clothes. It is true that
if a man declares on oath that he cannot say for certain what the
colour is, he must be excused this particular requirement."

11 . Quintilian, the teacher, has left for us the best
record of the combined art of the advocate and the *

practitioner. He was the first official professor of law ever
appointed. For twenty years (about A. D. 68-88) he
lectured on the art of advocacy, and students flocked to
Rome from all Italy and the distant provinces to receive
his instructions. His work on “The Education of the
Advocate” teems with observations and precepts which
fit the conditions of the Anglo-American bar today as well 1

as the Roman bar of eighteen centuries ago. 18 His twelfth
book should be mastered by every young lawyer; and the

\ixbu pic^iiMKc tbnd oudiiTt Ik&ttfio^durcidqifcy oc\]r
y*ml*:Iii,iTn\iuc^uor^ iidfttupouut rtfugc rtLauAfSrru* mxMmone*
poll unit- Scd£utfcUimif

rvi i trtdf ) d icdt ; plimi n mmttut & tdq non doc&tnt atufaj 1} /

“t iu jmiumio tiff Ui4tocrloa^twi* Qua#! crtdeHd g

Ini uf mod ifactmfcddid Voiocdaiif Hi ucn icdiof nd

. l.-.v'l 1 m r. 4 min htiu niTiAiiJj fj*. n a r- Ji . I . . . _ . . ’W

cunduj c w(b ttaJQiW d ranuA

pot/quu^i ttapi m nufmril d*fli^amiiern3Lhi^^
ntTi’mr Ac ptnc n< \wV tid dm cm qtitt irmif hhtm ad uenu utot mimr
Qcpcttamuf puemirudUn (Tum ^duC^Tdifcmcbp^conurtaaDiu
pmittrtit Ujgfltocnkttfttj popuhi ^(TwrtDTaudnoivcOlpi

wmpminlfa aur mtn« Cik -c fidqhoc^ dcteA™ ^ ii? hm
rnptuf 4ut imW crm'dut Vmrdmtcnx^nA
p ht^uct <pirnift dom i

q tiotrburdribnnii q nd^nnrtitiomirtbr ^M^w^uptiuajitor
mhrt “ mdidcrit- jwu?ntif ftruar: mo poctauiradidli ■

to uf IcKtCeat qupf u* utrtf ( Whuirm ajnndo 4c ritirpta

nr finjJUof tiumr amcnit-g fidCdqriin ill eST i2i in dUiaiido n
inau nctui\ c- qujr tpni quc tool Tfhtatft ifathuTntta upr

tv txcpubino tm tUiud qd am 6 ua1rpb lE itionirq^ ?

Leri tttUf qua fine rcfttfcndt: m uftir i «?dtt vtuC

dii^io aticrurptu Ubatrr nuo^ fbt pCpma Gipitittf gmmd pmif
inma bmXiix*y mt - Sir owfof pftrWd^oQ'itifW Kulorfenif
yfftmt luxrat ac dcindc pfouai mduutt i uduif an#

qupflinr luxrat ut icrtu^ dcindc pCona* indW i uduif ac#

wm . ttq, tpin mouifftt dreadq tvpiuadniruj id MRtifUinui
. pa qu/ rna. ayr aiftimir - GtCYc ox vara fkuct aicuif jluc mlpii indi
\ 1 'niAiuli in * ^ndiT rnf pt-ticT lliitr

Vr 1 dr T Odcndo Omtcttida trip ftw~ opc reetjuun fmrtuT tyiu
rn iigtairidie*y.i \nca

VII. 18 — Quintilian’s “Education of the Advocate”
The passage quoted in translation begins at the ninth line

[W]

11. The Teachers

V1L Roman Legal System

insight and aptness of his comments reveal how little the
human nature of law-practice has changed in two thou-
sand years. Here is an illustrative passage upon prepa-
ration for trial: 1

[Quintilian , on Preparation for Trial.] [Book XII, c. VII,
par. 10.]

“10. When the advocate [consulted by the client] has exercised
sufficient patience in listening to the client, he must then assume
another character, and act the part of the ad versary ; he must state
whatever can possibly be imagined on the other side, and whatever
the nature of the case will allow in such a discussion of it. The
client must be questioned sharply and pressed hard; for, by search-
ing into every particular, we sometimes discover truth where we
least expected to find it.

“11. In a word, the best advocate for learning the merits of a
cause is he that is least credulous; for a client is ready to promise
everything,— offering a clbud of witnesses, and sealed documents
quite ready, and averring that the adversary himself will not even
dispute certain points.

“12. It is therefore necessary to examine all the writings re-
lating to a case; it is not sufficient to inspect them; they must be
read through ; for very frequently they are either not at all such as
they were asserted to be, or they contain less than was stated, or
they are mixed with matters that may injure the client’s cause, or
they say too much, and lose all credit from appearing to be exag-
gerated.

“13. We may often, too, find a thread broken, or wax dis-
turbed, or signatures without attestation ; all which points, unless we
settle them at home, will embarrass us unexpectedly in the Forum;
and evidence which we are obliged to retract will damage a cause
more than it would have suffered from none having been offered.

44 1*1. Am advocate will also bring out many points which his
client regarded as having no bearing on the case, if he but go over all
the grounds which 1 have previously specified for arguments; and as
it will be by no means convenient to review all these, and try them
one by one, while we are pleading, for the reasons which I have
given, so, in studying a cause, it will be necessary to examine min-
utely what sort of characters are concerned in it, what times, or
places, or practices, or documents, have any reference to it, and all
other particulars, from which not only artificial proofs may be
drawn, but it may be ascertained what witnesses are to be feared,
and how they are to be refuted; for it makes a great difference
whether an accused person suffers under envy, or dislike, or con-
tempt, of which the first is generally directed against superiors, the
second against equals, and the third upon inferiors.

*

4 4 15. After having thus thoroughly examined a cause, and
brought before his eyes everything that may promote or hinder its
success, let him, in the third place, put himself in the place of the
judge, and imagine the cause to be pleaded before him; and what-
ever arguments would move him most if he had really to give judg-
ment on the matter, let him suppose that those arguments will have
most effect upon any judge before whom it may be brought. Thus
the result will seldom disappoint him; or, if it does, it will be the
fault of the judge.”

12. Gaius, the jurist, typifies the advent of law as a
science. 19 One of Gaius' treatises, the Institutes, served
as the text-book of legal study for three centuries after his
death (which occurred perhaps about A. D. 200), and is
the only Roman law-book, prior to Justinian, that has
survived to us in fairly complete text. Totally lost for
fourteen centuries, it was found again, by luck, a hun-
dred years ago. The original text looks hopelessly

[ 486 ]

[ 487 ]

12. 'Hie Jurists

i ndeci pli c* r:i -
Me; 1 " for tin*

manuscript is a
pal impscst,
that is, written
originally on a
parchment over
which a medi-
eval monk had
later written
the life of a
saint, after
carefully eras-
ing Gaius’ text.
But modern
scholarship and
chemistry tri-
umphed and
restored to
knowledge this
priceless book. «

VII. 20 — Gaius* Institutes

This is the appearance of the parchment when Niebuhr
first saw it and detected beneath the monk’s writing
the original obscure law-text

Gaius’ book introduces us to the new element in legal
thinking, — generalization of concrete rules, by classifica-
tion and abstraction, into principles forming a system.
Its distinctive nature can best be seen in the following
extracts : 11

[ 489 ]

A 7 //. Roman /a’ na I System

[Gains' Institutes, Hook First.] §1. "The laws nl' every |>cn|>le
governed by statutes and customs are partly peculiar to ilsell,
partly common Icy all mankind. The rules enaeied l>y ;i given
state for its own members are peculiar to ilsell, and are called ciyil
law; the rules prescribed by natural reason for all are observed by all
nations alike, and are called law of nations. So the laws of the
people of Rome are partly peculiar to itself, partly common to all

nations; and this
distinction shall be
traced, as occasion
offers, through all
the branches of the
code.

Ҥ2. Roman
law consists of stat-
utes, plebiscites,
senatusconsults,
constitutions of the
emperors, edicts of
magistrates author-
ized to issue them,
and opinions of
jurists.

Ҥ3. A statute
is a command and
ordinance of the
people: a plebiscite
is a command and
ordinance of the
commonalty. The
commonalty and

VII. 21 — Gaius' Institutes, Restored the people are thus

This is a page restored in its original characters distinguished . the

12. The Jurists

people* nre nil (lie eil izens, including I Ik* pul rieinns; I In* communally

an* all the citizens, except llie pnlricinns

ҤN. Kvcry right which we exercise relates cither to persons, or
to tilings, or to actions; and let us first examine the law of persons.

Ҥ9. The first division of men by the law of persons is into
freemen and slaves.

Ҥ10. Freemen are divided into freeborn and freedmen.

Ҥ11. The freeborn are free by birth; freedmen, by manu-
mission from legal slavery.

Ҥ12. Freedmen, again, are divided into three classes, citizens
of Rome, Latins, and persons on the footing of enemies surrendered
at discretion. Let us examine each class in order, and commence
with freedmen assimilated to enemies surrendered at discretion

Ҥ48. Another division in the law of persons classifies men as
either dependent or independent.

“ §49. Those who are dependent or subject to a superior, are
either in his power, in his hand, or in his mancipation.

Ҥ50. Let us first explain what persons are dependent on a
superior, and then we shall know what persons are independent.

Ҥ142. Let us now proceed to another classification: persons
not subject to power, nor to hand, nor held in mancipation, may still
be subject either to guardianship br to administration, or may be
exempt from both forms of control. We will first examine what
persons are subject to guardianship and administration, and thus
we shall know who are exempt from both kinds of control.

Ҥ143. And first of persons subject to guardianship or tutelage.

Ҥ188. The foregoing statement shows the various kinds of
guardian: the question of the number of species to which these kinds

i be

• — '

—

—

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si Mt \ u crop i tXt eme opuonpxc rXee n T^pW

[UO]

[ 441 ]

VII. Roman Lena I System

may be reduced involves a long discussion, for it is a point on which
the ancient jurists differed greatly; and as I have examined it at
length, both in my interpretation of the Edict and in my commentary
on Quintus Mucius, for the present occasion it may suffice to ob-
serve that some, as Quintus Mucius, make five species; others, as
Servius Sulpicius, three ; others, as Labeo, two; others make as many
species as there are kinds of guardian

[Book Second.] Ҥ1. In the preceding book the law of persons
was expounded ; now let us proceed to the law of things, which are
either subject to private dominion or not subject to private do-
minion.

Ҥ2. The first division of things is into two classes: things
subject to divine dominion, and things subject to human dominion.

Ҥ3. Subject to divine dominion are things sacred and things
religious.

Ҥ4. Sacred things are those consecrated to the gods above;
religious, those devoted to the gods below .....

Ҥ10. Things subject to human dominion are either public or
private.

Ҥ11. Things public belong to no individual, but to a society or
corporation; things private are subject to individual dominion.

"§12. Again, things are either corporeal or incorporeal.

"§13. Things corporeal are tangible, as land, a slave, clothing,
gold, silver, and innumerable others.

Ҥ14. Things incorporeal are intangible; rights, for instance,
such as inheritance, usufruct, obligation, however contracted. For
though an inheritance relates to things corporeal, and the fruits of
land enjoyed by a usufructuary are corporeal, and obligations
generally relate to the conveyance of something corporeal (land,
slaves, money), yet the right of succession, the right of usufructuary

!2. The Jurists

enjoyment, and llic li^li! nl the coni laclor, arc incor|>orcal. So arc
the rights allaclicd lo properly in houses and land, denominated
servitudes or easements.”

Guilts’ classical definition, above quoted, “Every right
that we exercise pertains either to i>ersons or lo things
or to actions”, has since served as a basis of juristic dis-
cussion during two thousand years. Whether sound or
not, it is of momentous significance, for it marks the dawn
of legal science in the world. In all the literature of the
legal systems prior to the Roman there are no abstract
generalizations of the body of positive law, — no jurists
treating the rules as a logically connected system. It
was this contribution which we owe distinctively to the
imperial period of Roman law; and it is this feature which
made it possible, a thousand years later, for the mere
resurrected texts of the obsolete Roman law to stimulate
new thought in the sturdy crude Germanic regions of law,
and to lead ultimately to modern juristic science.

(Ill) Period of the Later Empire

13. In Gaius’ time the Roman Empire included a
population of perhaps one hundred and fifty million
persons. But during the next three centuries, it became
topheavy; and by Justinian’s time, A. D. 520, it had been
divided into the Eastern and Western Empires.” The
fierce Goths had twice besieged Rome. Ravenna, in

[ 448 ]

I ’ll. Roman Legal System

Northern Jtaly, had become the Western center; and in
that city may— still be seen the celebrated mosaic of
Justinian and his ministers. 22 Byzantium, or Constan-
tinople, where Greek civilization prevailed, became the
Eastern and finally the only center. Native Roman legal
thought had long been atrophied, and Byzantine jurists
now practiced Roman law in Greek. But the classical
treatises of the Roman jurists were still venerated as con-
trolling authorities.

Finally, about A. D. 550, Justinian, at Byzantium, un-
dertook to reduce the now enormous bulk of law to man-
ageable form. The result was the famous Pandects, or
Digest, the Code, and the Institutes. The first repre-
sented a culling from the most approved juristic writings;
the second, a compilation of the Imperial legislation; and
the third, a students’ handbook of the law. For the
Digest, 22 in three short years they collected and exam-
ined two thousand Dooks, containing three million
sentences or paragraphs; and reduced them to about
one hundred and fifty thousand sentences. All the
original Latin treatises, from which the choice passages
had been culled, were forbidden ever again to be cited,
under heavy penalty; and in fact they have all perished,
Gaius’ Institutes alone surviving by accident.

The world-fame of Justinian rests on this Digest, and
it was indeed compiled under his supervision; Benjamin

[ 444 ]

VII. 23 — Justinian’s Digest, or Pandects

This is page 1 of the famous manuscript which the Florentines bore
off in triumph from Pisa five centuries ago; it was bound in
purple, and, when exhibited, all heads must be bared. To-
day, an official never leaves the visitor's side

[U5]

Vll. Roman Lex a I System

Constant’s great painting lias depicted the scene.' 14 Hut
Justinian’s preface gives full credit to the commission of
seventeen jurists, chaired by Tribonian, the most learned
man of the age, to whom the purple-robed emperor com-
mitted the huge task. All of these jurists were Byzantine
Greeks. Even the Preface to the Digest was promulgated
in Greek; and these Roman principles, in Greek para-
phrases, survived for some time in the Oriental regions.

14. But Italy, by this time, was overrun and being
settled by the Germanic invaders, whose legal system
then dominated. This Latin Digest itself disappeared
from general knowledge for five centuries, so that only one
complete and reliable copy was ever found again. The
time appointed by Fate had arrived for the downfall of the
Roman system.

Rome’s magnificent edifices 25 — the Capitol with its
priceless library of legal records, the superb Forum, the
splendid court-houses — were destroyed by fire and siege.
All relics of paganism were despised by the fanatics of the
new religion. The pillared porticoes that once had echoed
the voices of Julian and Papinian were plundered to patch
the walls of some medieval shrine or castle; and thousands
of sculptured marbles were burned in lime-kilns to make
common mortar. The devastated Forum became a cattle
pasture. Its very name was forgotten; and from the

[U6]

VII. 24 — Justinian Presiding Over the Compilation

[U7]

VII. 25 — The Forum

VII. Roman Legal System

middle ages to modern limes i( was known only as ‘‘I lie
Cattle Field”. »

Once, five centuries before, at Koine’s zenilli, as when
the apostle Paul was accused of crime, in a far eastern
city, before the Roman governor Festus, he could boldly
claim the rights of his Roman citizenship. “1 ought (o
be judged before CaesSr, and I appeal unto Caesar”, said
Paul. And Festus answered, “Thou hast appealed unto
Caesar, and to Caesar thou shalt go”. But now, never
again could a Roman citizen throughout a broad empire
appeal to Caesar’s justice. Jurisprudence had been the
one science of the Romans; and with the Roman govern-
ment it perished in Europe. The justice of the Caesars
was no more.

[ 448 ]

VII. 26 — The Deserted Forum ix the Middle Ages
For more than a thousand years it was known only as The Cattle Field

VII. Roman Legal System
Sources of Illustrations

1. Map of the Roman Empire. From Keith Johnston , “The World Classical
Atlas”, plate 12 (W. & A. K. Johnston, Edinburgh, no date).

2. Forum. From a photograph by R. Solano , Rome, of an unidentified
drawing.

2 -a. Forum. From the drawing in F. Hoffhauer and H. Thldenet , “Le Forum
Romanum”, p. 88, plate 4 (Paris, Plon, 1905).

3 ; . Senate Resolution De Bacchanalihus. From the facsimile in “Corpus
Inscriptionum Latinarum”, vol. I, Atlas, “Tabulae lithographae”, ed.
Ritschel , plate XVIII (Berlin, 1862).

4. Lex Julia Municipalis. From a photograph of the original, furnished by
the Director of the National Museum at Naples, 1923.

5. Lex Coloniae Genetivae Juliae. From the facsimile in M. R. de Berlanga ,
“Los Bronces de Osuna”, Appendix (Malaga, 1873).

6. Genoa Judgment. From a facsimile published by the Municipal Museum
of History and Arts, at Genoa.

7, 7. 1 Contract to Build a Gateway. From a photograph of the original, furnished
by the Director of the National Museum at Naples; there is also a fac-
simile in Otto Gradenwitz y “Additamentum”, vol. 2, “Simulacra”, to C. G.
Bruns, “Fontes Juris Romani”, 7th ed. (Tubingen, 1912); the design is
given in “Corpus Inscriptionum Latinarum”, cited supra.

8. Hortensius. From a photograph made for the author by Alinari Bros.y
Rome, of the statue in the Palace of Justice, Rome.

9. Cicero. From a photograph by Alinari Bros.y Rome, of the bust in the
Capitoline Museum.

10. Cicero's Speech against Catiline. From a photograph by Alinari Bros.y
Rome, of the painting by Maccari in the Senate House (Palazzo Madama).

11. Ulpian Court-House. From a photograph by R. Solano , Rome.

12. Constantine Court-House. From a photograph by Carlini & Mori y Rome.

13. Jesus Arraigned before Pilate. From a reproduction of the painting by
Michael Munkacsy f owned by Rodman Wanamaker, Philadelphia (copy-
right). No eye-witness account of a praetorian criminal trial at Rome is
extant. But the scene has been reconstructed in fiction with master hand
by a modern scholar: E. Lucas White , “Andivius Hedulio; Adventures of
a Roman Nobleman in the Days of the Empire”, c. 37, p. 549 (New York,
Dutton, 1921).

Sources

I I. Vila te .1 sting the Multitude. From u photograph by Alinari Bros.y Koine,

of the painting by Antonio Cisvriy in I lie Modern Art. Gallery at Florence.

15. Julian the Judge. From a photograph made for the author by Alinari
Bros.y Rome, of the statue in the Palace of Justice.

10. Papinian. From a photograph made for the author by Alinari Bros.y
Rome, of the statue in the Palace of Justice.

17. Ulpian the Counsellor . From a photograph made for the author by
Alinari Bros.y Rome, of the statue in the Palace of Justice.

18. Passage from Quintilian. From a photograph, furnished by Albert S.
Osborn , of New York, of the manuscript in the Laurentian Library at
Florence.

19. Gaius . From a photograph made for the author by Alinari Bros.y Rome,
of the statue in the Palace of Justice.

20. Gains' Institutes , Original MS. From the facsimile of the original (in the
Verona Library) in “Gai Codex Rescriptus .... phototypice ex-
pressus” (Leipzig, Karl W. Hiersemann, 1909, from plates made by the
Danesi Co. y Rome).

21. The Same , Restored. From the facsimile in the edition by W. Studemund
(Leipzig, 1874).

22. Justinian and his Ministers (Ravenna Mosaic). From a photograph of the
original in the Basilica of San Vitale at Ravenna.

23. Justinian's Digest. From the facsimile of the original MS. in the Lauren-
tian Library at Florence, published in “Justiniani Augusti Digestorum
sive Pandectarum Codex Florentinus olim Pisanus phototypice expressus”
(Rome, 1902).

24. Justinian Presiding over the Compilation. From a photograph of the
painting by Benjamin Constant , in the Metropolitan Museum of Fine Arts,
New York.

25. The Forum Buildings. From a photograph of the reconstruction by
E. Becchettiy of the Royal Academy of Fine Arts, Rome.

26. The Deserted Forum in the Middle Ages. From the drawing in F. Hoff-
bauer and H. Thldenety “Le Forum Romanum”, p. 87, plate 5 (Paris, Plon,
1905).

[ 450 ]

r 451]

VII. Roman Legal System
Sources of Documents Quoted in Text

a. Twelve Tables. From the translation in Kocourek and Wigmore's “ Invo-
lution of Law Series”, vol. I, p. 465 (Boston, Little, Brown & Co., 1015).

b. Lex Julia Municipalis. Revised from the translation in E. G. Hardy ,
“Roman Laws and Charters”, p. 151 (Clarendon Press, 1912); the Latin
text is in P. F. Girard , “Textes de droit romain”, 5th cd., 1893, p. 80.

c. Lex Coloniae Genetivae Juliae. From the translation in E. G. Hardy,
“Three Spanish Charters”, p. 23 (Oxford, Clarendon Press, 1915).

d . Genoa Judgment B. C. 100. MS. translation (Latin text in “Corpus
Inscriptionum Latinarum”, vol. I, plate XX, and p. 453) from the Italian
translation in the Catalogue of the Museum of History and Arts at Genoa.

e. Contract to Build a Gateway. From a MS. translation by O. Floyd Long ,
professor of Latin in Northwestern University.

/. Deed of Realty. Translated from the text in Girard (cited supra), p. 851.

g. Will. Translated from the text in Girard (cited supra), p. 805.

h. Gibbon. “Decline and Fall”, c. XLIV (vol. 5, p. 273, ed. Smith , Boston,
1854.)

i. Servius Anecdote. From the Digest, I, 2, 2, 43.

j. Tacitus on Orators. From his “Dialogus”, par. 6, transl. Wm. Peterson
(London, Heinemann, 1914).

k. Cicero’s Topics. From the translation in C. D. Yonge , “Orations of
Marcus Tullius Cicero”, vol. IV, p. 460 (London, Bohn, 1856).

l. Apollonius’ Trial. From Philostratus , “Life of Apollonius of Tyana”
book VIII, transl. Conybeare (London, Heinemann, 1912).

m. Sophists’ Trial. From Eunapius, “Lives of the Philosophers”, transl.
W. C. Wright, p. 469 (Loeb Classical Library, 1922).

n. Pomponius. From the Digest, I, 2, 2, 49.

o. Julian’s Edict. MS. translation from the text in Girard (cited supra),

p. 137.

p. Court Record A. D. 124. Translated from the text in Girard (cited
supra), p. 899. The military title of this judge was probably only honor-
ary, for Egypt had been subjugated a century before. Cicero on a visit
to Greece took with him a military commission.

[ 452 ]

Sources

'/• Court Record of A. I). 207. Emm a MS. translation by (>. Floyd Long,
professor of Latin in Northwestern University, from the text in Girard
(cited supra), p. 907. A facsimile of the original record has been shown
ante, chap. 1 (Egypt), plate I I.

r. A Counsellor’s Opinion. From a MS. translation by A. Kocourek, pro-
fessor of Law in Northwestern University (text in Girard, cited supra, p.
621).

5. Passage from Ulpian. From the translation in C. IL Munro, Digest
XL VI I, 2, De Furtis, p. 25 (Cambridge University Press, 1893). But
“furtum” has here been translated “conversion”.

t. Passage from Quintilian. From the translation by John Selby Watson,
p. 424 (London, 1856).

u. Passage from Gaius. From the translation in Edward Poste, “Elements of
Roman Law, by Gaius” (2d ed., 1875). But for C. 1, §8, has been used
the correct translation of Joseph I. Kelly , in Illinois Law Review, VI, 561.

General References

The materials in English are here readily ascertainable. They may be found
cited in the following work:

Chas. P. Sherman, “Roman Law in the Modern World” (Boston, 1917, 3 vols.).
To which may be added : J. Declareuil, “Rome the Lawgiver” (New York
1926).

[ 453 ]